Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Mt. Olivet City Council violated the Kentucky Open Meetings Act in failing to comply with notice requirements codified at KRS 61.823(4) prior to holding special meetings on July 16, 2012, and July 23, 2012. Because the City Council has not refuted the claim that proper notice was not provided twenty-four (24) hours in advance of its July 16 special meeting, the Attorney General must assume that a violation of KRS 61.823(4) was committed. If the City Council discussed public business during the admitted meeting of a quorum of the members of the public agency on July 23, its failure to comply with all notice requirements codified at KRS 61.823(3) and (4) on that occasion also violated the Act. In failing to issue a written response to Tony Beach's July 26, 2012, complaints regarding the special meetings held on July 16 and July 23, until August 8, after he submitted this appeal, the City Council indisputably violated KRS 61.846(1).
By separate complaints delivered on July 26, 2012, Mr. Beach alleged that on July 16, 2012, "at approximately 6PM a special meeting was held at the Robertson County Public [L]ibrary, which is the Mount Olivet City Council's regular meeting location. The meeting was not advertised pursuant to KRS 61.823(4)." According to Mr. Beach, "[t]hree City [C]ouncil members were present along with the Mayor and the City [C]lerk. At the date of the meeting there were four presiding [C]ouncil members making the attendance of three of those members a quorum. City business was conducted at length during this meeting." Mr. Beach separately alleged that "a special meeting was advertised for" July 17, 2012, at 5:30 p.m. at the Robertson County Public Library "but canceled at approximately 5:00 PM on that day." 1 The meeting scheduled for July 17, he continued, "was advertised to be the same meeting as the 23rd with the same agenda. Public participation was subverted due to the changing of not only the time but the location of the special meeting. " Additionally, Mr. Beach alleged that "[o]n July 23, 2012 at 9AM a special meeting was held at the Mount Olivet City Hall. The meeting was not advertised pursuant to KRS 61.823(4), specifically" the agency did not provide 24 hours of notice. 2
To remedy these alleged violations, Mr. Beach proposed the following:
1. All special meetings of the Mount Olivet City Council be advertised 48 hours in advance.
2. Special meetings of the [C]ity [C]ouncil be limited to emergency situations only.
3. When advertising any special meeting of the [C]ity [C]ouncil that I be notified by phone 24 hours in advance of the special meeting.
4. All special meetings be held at the Robertson County Public Library since it is the regular meeting location for monthly [C]ity [C]ouncil meetings.
5. All meetings be held after 5 PM.
6. Special meetings be limited to one in any given month and not to exceed in one calendar year.
Having received no response to either of his complaints, Mr. Beach initiated this appeal by letter dated August 7, 2012.
Upon receiving notification of Mr. Beach's appeal from this office, W. Kelly Caudill, legal counsel for the City, responded on behalf of his client, focusing exclusively on the complaint regarding its July 23 special meeting. Mr. Caudill indicated that "[s]ome [C]ouncil members met for the purpose of introducing themselves to a prospective new [C]ouncil member who was interested in filling a vacancy on the Council. The Council and the Mayor did not conduct any City business." Mr. Caudill "advised the Mayor and Council that any time there is a quorum that they must comply with the Open Meetings Act and treat same as a special meeting providing at least twenty-four (24) hours notice. " The City Council respectfully declined to adopt Mr. Beach's proposed remedies, asserting that he "made demands" to which he is not entitled. Attached to Mr. Caudill's appeal response was a copy of his August 8 response to Mr. Beach advising that he "counseled the Mayor and the City Council with regard to the Open Meetings Act requirements and they will strictly abide by them." Mr. Caudill advised Mr. Beach that his proposed remedies were being denied as "they are in excess of what the statute requires." 3
In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3 (emphasis added); 02-OMD-11. In applying this provision, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps , the Kentucky Court of Appeals likewise recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. " Id. at 452. As the foregoing authorities illustrate, "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government' openly arrived at." 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A.2d 563, 564 (N.J. Super. Ch. 1982).
To promote this goal, the Open Meetings Act establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. Specifically, KRS 61.823(1) provides that "[e]xcept as provided in subsection (5) of this subsection [which apparently does not apply], special meetings shall be held in accordance with the provisions of subsections (2)[the presiding officer or a majority of the members may call a special meeting] , (3), and (4) of this section." In filing his complaints/appeal, Mr. Beach relied upon KRS 61.823, pursuant to which:
(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.
(4)(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
(c) As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting .
"The language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). It requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . .," or sent via electronic mail per KRS 61.823(4)(b). Verbal notification by telephone or in person is not sufficient. 03-ORD-197; 04-OMD-184. In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. Public agencies must comply with all of these requirements.
The City Council has not refuted Mr. Beach's claim that it failed to comply with KRS 61.823(4) specifically prior to its July 16 meeting. In the absence of any evidence to refute that proper notice was not provided 24 hours in advance of the July 16 special meeting, this office must assume that none was provided; accordingly, this office finds that the City Council also violated the Act insofar as it failed to comply with all notice requirements codified at KRS 61.823 prior to its July 16 special meeting, and 61.823(4) in particular. Because the law is well-settled regarding application of these requirements, the City Council has conceded that 24 hours of notice must be given prior to a special meeting, and its legal counsel has indicated on appeal that he reviewed the requirements of the Act (presumably KRS 61.823(3) and (4) specifically) with the agency in order to avoid future violations of this nature, further discussion is unwarranted. See 02-OMD-11; 03-OMD-197; 10-OMD-171.
The City Council has not denied failing to comply with KRS 61.823 prior to holding the July 23 special meeting, implicitly arguing that KRS 61.823 did not apply because it did not "conduct any City business." "Public business" has been defined as "the discussion of the various alternatives to a given issue about which the board has the option to take action." Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 474 (Ky. 1998). The City Council did not elaborate nor does the record contain any further evidence to clarify what exactly was meant by " conduct any City business"(emphasis added) though it suggests that no action was taken; accordingly, this office reminds the City Council that KRS 61.810(1) prohibits both discussion of public business and final action by the agency. 4 If a quorum of the City Council gathers to discuss public business, a meeting occurs "regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " KRS 61.805(1) . Such meetings must be open to the public unless one of the exceptions codified at KRS 61.810(1) is properly invoked. See 06-OMD-211. If a quorum of the members of the City Council discussed any public business during its July 23 meeting, which apparently was not a "regular meeting, " it violated the Act in failing to comply with KRS 61.823(3) and (4). Given the overwhelming weight of legal authority, this office concludes that the City Council violated the Open Meetings Act insofar as it failed to comply with all of the notice requirements codified at KRS 61.823 prior to holding its July 16 special meeting and its July 23 special meeting (if any public business was discussed).
In addition, the City Council violated KRS 61.846(1) which, in relevant part, mandates:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. . . .
(Emphasis added.) In construing KRS 61.846(1), this office explained that it "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2. As the record establishes, the City Council did not respond upon receipt of Mr. Beach's July 26 complaints which, in all particulars, complied with KRS 61.846(1), until August 8. Its failure to issue a written response within three business days also constituted a violation of the Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Distributed to:
Tony BeachLinda ReedW. Kelly Caudill
Footnotes
Footnotes
1 The City Council offered no explanation for the alleged last minute cancellation, either initially or in responding to Mr. Beach's appeal. In addressing a similar type of claim, this office noted that "as in all matters not specifically addressed by the statute, we apply a rule of reasonableness. KRS 61.820 provides, in part, that all meetings of all public agencies shall be held at specified times and places which are convenient to the public." 05-OMD-011, p. 5(original emphasis)(copy enclosed). Applying this provision to a complaint regarding a public agency's decision to relocate a meeting, this office noted, the Attorney General found that moving the location "'for the convenience, safety, or comfort of the public'" was proper and consistent with KRS 61.820. Id., p. 5, quoting 97-OMD-84; see 04-OMD-56 (Attorney General found "'no conscious attempt by the . . . agency to exclude the public from [its] meeting' when the starting time for a site-based council meeting was delayed by thirty minutes"); 05-OMD-011 (this office was "reluctant to assign error when an unforeseen exigency, such as the scheduling conflict here, necessitates a change in meeting room location and reasonable measures are taken to ensure adequate notice to the public of that change"). The record here lacks adequate information for the Attorney General to determine whether a violation was committed. Accordingly, this office must assume that "reasonable measures" were taken to adequately inform the public of necessary changes in time and/or place.
2 Mr. Beach focused exclusively on the agency's failure to comply with KRS 61.823(4) by providing notice 24 hours in advance of the July 23 special meeting. He did not specifically allege that any violations of KRS 61.823(3) were committed, nor did the City Council argue that it complied therewith. If the City Council discussed any public business during the admitted meeting of a quorum of the members of the agency conducted on July 23, the meeting was subject to the requirements of the Act per KRS 61.805(1) and 61.810(1), as discussed below, and its failure to comply with all notice requirements codified at KRS 61.823(3) and (4) before that special meeting also violated the Act.
3 The City Council is correct in this assertion relative to remedies 1-3, 5 and 6. KRS 61.823(4) provides that notice shall be provided 24 hours in advance rather than 48. See 11-OMD-136. Also, that provision outlines the requirements for notice to the public generally but does not require that notice be provided to individual citizens. The requirements for emergency meetings are outlined at KRS 61.823(5) and "shall govern a public agency's conduct of a special meeting" only if an emergency arises "which prevents compliance with subsections (3) and (4)." With regard to whether a public agency's regular meeting time is "convenient" within the meaning of KRS 61.820, this office refers the parties to 10-OMD-171(holding that 11:30 a.m. on a weekday "is not so inconvenient of a time as to violate KRS 61.820 when viewed in light of Knox County v. Hammons, 129 S.W.2d 839 (Ky. 2004)" but urging the agency to be mindful of the legislative policy of the Act codified at KRS 61.800 and judicial declarations regarding same)(copy enclosed). In reference to how frequently a public agency is permitted to hold special meetings, the parties may wish to review 11-OMD-129(agency did not violate Open Meetings Act by conducting ten to twelve special meetings between January 1 and July 25, 2011, but if "proof were presented that fiscal court, or any public agency, intentionally conducted the majority of its business at special meetings to avoid public scrutiny, Attorney General would almost certainly find that a violation of KRS 61.820 had occurred")(copy enclosed).
Because the role of this office in adjudicating a dispute under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented aside from offering this guidance. 08-OMD-164, p. 2.
4 KRS 61.810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following [enumerated exceptions]." (Emphasis added). In construing this provision, the Attorney General has "attached significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5; 06-OMD-211.