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 Ravenna City Council violated KRS 61.820 by rescheduling its regular meetings in June and July 2012, and failing to hold meetings in some months, failing to provide meeting room conditions which allow effective public observation per KRS 61.840, and improperly discussing general personnel matters in closed sessions held under authority of KRS 61.810(1)(f). Assuming the City Council strictly complied with all of the notice requirements for special meetings codified at KRS 61.823(3) and (4) on each occasion, this office has no basis upon which to find that a violation was committed when the City Council rescheduled two of its regular meetings. With regard to whether the City Council violated KRS 61.840, the conflicting and limited evidence presented on appeal precludes a conclusive determination; likewise, this office is unable to conclusively determine whether the City Council actually discussed general personnel matters beyond the scope of KRS 61.810(1)(f) during any meeting though minutes from the August 6, 2012, regular meeting suggest that such a discussion may have been held in at least one instance.
By letter directed to Mayor Charles Crowe on August 10, 2012, William C. Van Cleve alleged that regular City Council meetings "are not being held as they are scheduled. . . . KRS 61.820 does not exempt meetings from being held on holidays or because some of the members of the council do not want to attend for whatever reason." Mr. Van Cleve further alleged that the City Council is going into closed session under authority of KRS 61.810(1)(f) to discuss general personnel matters. Citing KRS 61.840, Mr. Van Cleve claimed that its meeting room conditions do not allow the public to effectively observe City Council meetings. Specifically, Mr. Van Cleve claimed that "members face one another at the meeting table and speak to the [M]ayor who is at the other end of the table away from the public. The council members speak in low voices and whisper among themselves and you cannot hear the discussion." To remedy the alleged violations, Mr. Van Cleve proposed that the City Council meetings should be held when they are scheduled, the City Council should rely on a different exception in holding closed sessions, and the City Council should arrange the meeting room in such a way that City Council members "face the people and speak to the people who elected them and not the [M]ayor." Although Mr. Van Cleve did not specify particular meetings in his complaint, he attached the agenda and minutes for the special meetings held on June 11 and July 9, 2012, and the agenda and minutes for the regular meeting held on August 6, 2012; accordingly, this office assumes that his complaint was based on the actions of the City Council before and/or during those meetings.
Having received no response to his complaint, Mr. Van Cleve initiated this appeal by undated letter, noting that City Council meetings are scheduled on the first Monday of the month at 6:00 p.m. but are "often" changed to a later date and the agency does not have a meeting in some months. Upon receiving notification of Mr. Van Cleve's appeal from this office, legal counsel for the City denied each allegation set forth in his complaint as follows:
. . . Pursuant to KRS 61.820, the City of Ravenna has enacted an ordinance specifying that regular city council meetings are to be conducted on the first Monday of each month. This occurs unless it is necessary to reschedule a meeting, and there is nothing in KRS 61.820 that prohibits the cancellation of a regularly scheduled meeting when it is necessary. Meetings can be rescheduled so long as they are treated as special meetings. When any regularly scheduled meeting is cancelled and needs to be rescheduled, notice is placed upon the entrance door to City Hall. Further, prior to any regularly scheduled or special meeting, an agenda is posted on the entrance door to City Hall and faxed to the local newspaper for publication. 1 When the meeting is a special meeting, the city council does not deviate from the posted agenda. The City of Ravenna treats all rescheduled meetings as special meetings and follows the criteria set forth in KRS 61.823.
. . .
. . . The city council meetings for the City of Ravenna take place at City Hall in the largest meeting room available. The meeting room has suitable room for meetings and is easily accessible to the public. As such, the conditions for attendance comply with KRS 61.840. See OAG 82-412. . . . Further, it must be noted that the council members are positioned around a table, but it is in such a manner that Mr. Van Cleve and all other members of the public in attendance should be able to hear all discussions. Further, seats are always available beside the City Clerk that are very close to all city council members. These seats are always open to members of the public, including Mr. Van Cleve. However, Mr. Van Cleve chooses to sit in the back of the meeting room at one of the farthest points away from the council members.
Counsel further advised there have not been any instances where general personnel matters have been discussed in closed session. The only personnel matters that have been addressed in closed session, he explained, "have been in accordance with KRS 61.810(1)(f) and involve discussions that might lead to the appointment, discipline or dismissal of an individual employee. "
Before addressing the substance of the instant appeal, this office is compelled to note that Mr. Van Cleve did not receive any written response to his complaint. Such inaction by the City Council unquestionably constituted a procedural violation of the Act. Pursuant to KRS 61.846(1), 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. . . ." In construing KRS 61.846(1), this office has consistently 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; 10-OMD-171. The Mayor, as presiding officer, did not provide any written response on behalf of the City Council to Mr. Van Cleve's August 10 complaint which, in all particulars, complied with KRS 61.846(1). No response for this omission has been offered in response to Mr. Van Cleve's appeal.
As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact. "
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint and the City Council violated the Open Meetings Act in failing to do so. Id. 97-OMD-43; 09-OMD-135; 11-OMD-114. In light of this determination, the question becomes whether the agency violated KRS 61.820 in cancelling and rescheduling its regular meetings in June and July 2012.
Pursuant to KRS 61.820:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
Although Mr. Van Cleve does not allege, nor does the record suggest that the City Council failed to "provide for a schedule of regular meetings" or comply with the mandate to make that schedule available to the public, the City Council also does not dispute that two of three regularly scheduled meetings were rescheduled between June 2012 and August 2012. In construing KRS 61.820 and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized:
There are only two kinds of meetings -- regular meetings and special meetings. . . . Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. [KRS 61.820]. . . . Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)[(a) and (b)], there are also posting requirements (KRS 61.823(4)[(c)]). 2 These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4. "When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " this office has observed, "the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2.
As the Attorney General noted at page 4 of 92-OMD-1677, "[t]he public has a right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823." Here, the City Council apparently cancelled its regular meeting scheduled for Monday, June 4, 2012, for unspecified reasons, and rescheduled it for one week later on Monday, June 11, 2012; likewise, the agency cancelled its regular meeting scheduled for Monday, July 2, 2012, and rescheduled it for one week later on Monday, July 9, 2012 (possibly because of the national holiday on July 4). In each instance the rescheduled meeting was, by definition, a special meeting. The City Council maintains that it complied with all of the notice requirements for special meetings codified at KRS 61.823(3) and (4) prior to holding each rescheduled meeting 3 and Mr. Van Cleve has not refuted this assertion; rather, the agendas and minutes from both meetings attached to his appeal validate the agency's position. Assuming full compliance with KRS 61.823, this office has no basis upon which to find that a violation of the Act was committed given the limited evidence presented, which does not establish a pattern, but instead only confirms that two regular meetings were rescheduled, the latter of which fell during a holiday week. Both meetings were scheduled for the following Monday at the regular meeting time and the record on appeal is devoid of any evidence to refute the agency's position that regular meetings are rescheduled only when "necessary." However, if "proof were presented that [the City Council], or any public agency, intentionally conducted the majority of its business at special meetings to avoid public scrutiny, [the] Attorney General would almost certainly find that a violation of KRS 61.820 had occurred." 11-OMD-129, p.1; compare 09-OMD-119.
In addition to requiring that a public agency "provide for a schedule of regular meetings" which "shall be made available to the public," KRS 61.820 provides that "[a]ll meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public. 4" The Open Meetings Act imposes a corollary on public agencies in requiring that "all agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings." KRS 61.840. Mr. Van Cleve has alleged that the City Council violated KRS 61.840 in failing to provide meeting room conditions which allow effective public observation. Direct guidance concerning application of KRS 61.840 can be found in
Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004), wherein "the Kentucky Supreme Court articulated a less stringent standard to be applied in this context than the standard adopted by this office in 97-OMD-28 and its progeny[.]" 04-OMD-145, p. 7. The appellees/taxpayers in Hammons claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id. at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the annual Daniel Boone Festival. Id. at 844. In their view, the agency did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance should have been invalidated. Id. As the Court observed:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway.
Id. When viewed in context, such conditions did not constitute a violation of KRS 61.820 or KRS 61.840.
Agreeing with both the trial court and the Court of Appeals, the Supreme Court in Hammons found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id. Even if holding the meeting at that time was necessary, the Court reasoned, the Fiscal Court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id. That said, the Court nevertheless concluded that the fiscal court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840. Id. at 845. Significantly, the Court reasoned that "Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times." Id. Rather, the Open Meetings Act is "designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location." Id. Because the meeting at issue satisfied this more lenient standard, the Court concluded that the agency did not violate "either the letter or the spirit" of the Act. 5 Id.
Mr. Van Cleve claimed that "members face one another at the meeting table and speak to the [M]ayor who is at the other end of the table away from the public. The council members speak in low voices and whisper among themselves and you cannot hear the discussion." The City Council maintained that its meetings are held in the largest meeting room available, which has "suitable room for meetings and is easily accessible to the public." Members are positioned around a table, the City Council acknowledged, but "in such a manner that Mr. Van Cleve and all other members of the public in attendance should be able to hear all discussions. Further, seats are always available beside the City Clerk that are very close to all city council members." These seats, the City Council maintained, are open to members of the public, including Mr. Van Cleve, but he chooses to sit in the back of the meeting room at one of the farthest points away from the members. Ultimately, this office cannot resolve the question presented given the conflicting evidence presented. If members of the City Council are discussing public business in tones which are not audible by the public that is clearly inconsistent with KRS 61.840; however, the record is devoid of evidence to refute the City Council's account of events. Problems associated with adjudication of this question "are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue compel us to conclude that the record is insufficient to support the claimed violation." 03-OMD-178, p. 17. In sum, this office unable to resolve this factual dispute in favor of either party, but encourages the agency "to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840[.]" Id.
The final allegation of Mr. Van Cleve's August 10 complaint was that general personnel matters have been discussed in a closed session (s) held under authority of KRS 61.810(1)(f). He did not specify a meeting at which improper discussions were allegedly held. The City Council denied his claim in equally general terms. A review of the meeting agendas and minutes of record only reveals one reference to KRS 61.810(1)(f), in the minutes from the City Council's August 6, 2012, regular meeting, which indicate that a motion was made "to go into closed session per KRS 61.810 , par. F, for personnel reasons." 6 A generic reference to "personnel reasons" or "personnel matters," does not constitute the "specific and complete notification" required under
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), or prior decisions of this office interpreting KRS 61.815(1)(a). Rather, a public agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, the general nature of the business to be discussed in closed session (appointment, discipline, or dismissal of an individual employee) , the specific reason for the closed session (which of these particular actions is contemplated), and which of the exceptions codified at KRS 61.810 is being invoked (KRS 61.810(1)(f)). The Attorney General has consistently recognized that "matters only tangentially related to the appointment, or the discipline, or the dismissal of an individual employee cannot be discussed in closed session [under authority of KRS 61.810(1)(f)] . . ." 00-OMD-86, p. 3, and "KRS 61.810(1)(f), interpreted by this office in a manner consistent with the rule of strict construction codified at KRS 61.800, is 'severely restricted . . . [and only applies to discussions] which might lead to the appointment, discipline, or dismissal of personnel of that particular agency.'" 99-OMD-94, p. 6, citing 97-OMD-110, p. 3. The analysis contained in 11-OMD-114, a copy of which is attached hereto and incorporated by reference, is controlling with regard to application of KRS 61.815(1)(a) and 61.810(1)(f). As in that decision, the record lacks any objective proof to refute the agency's position or enable us to conclusively determine whether general personnel matters were improperly discussed in the August 6 meeting or any other. If the City Council discussed any general personnel matters during its August 6 closed session, it "expanded the scope of the [personnel] exception and improperly concealed matters otherwise appropriate to the view of the public." Ratliff at 924.
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:
William C. Van CleveCharles CroweCory M. ErdmannKimberly Parks
Footnotes
Footnotes
1 The record is unclear as to whether City Hall is both "the building where the meeting will take place" and "the building which houses the headquarters of the agency" though posting is required in both places to comply with KRS 61.823(4)(c). In the absence of any evidence to the contrary, this office assumes that City Hall satisfies both criteria.
2 Effective July 15, 2008, KRS 61.823 was amended to authorize transmission of the required notice by electronic mail (KRS 61.823(4)(b)) in addition to the methods identified at KRS 61.823(4)(a), and the posting requirement previously codified at KRS 61.823(4)(b) is now codified as KRS 61.823(4)(c).
3 See 10-OMD-168, a copy of which is attached hereto and incorporated by reference, with regard to application of KRS 61.823(3) and (4) generally.
4 Because no single day and time will meet with "universal approval," the Attorney General has given public agencies considerable latitude in scheduling their meetings. 98-OMD-74, p. 4; see 92-OMD-1728; 08-OMD-012; 10-OMD-171. The reasoning of Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004) further validated this approach.
5 See 07-OMD-094 (no uncontested proof that persons were effectively prevented from attending or participating in the meeting by virtue of the location or that meeting room conditions prevented effective public observation due to the arrangement of chairs and lack of a public address system); 06-OMD-079.
6 The agenda for the August 6 meeting did not include this item; however, in 01-OMD-175, this office recognized that "[b]ecause no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings." 01-OMD-175, p. 6. Although implied therein, shortly thereafter the Attorney General expressly held "that the description of items to be discussed or acted upon in the non-mandatory agenda for a regular meeting need not be sufficiently specific to ensure fair notice to the public." 01-OMD-181, p. 5. The Attorney General emphasized that he did not "mean to suggest that public agencies may prepare agendas for regular meetings that are consciously misleading or entirely inaccurate." Id. Rather, because no agenda requirements or limitation on discussions for a regular meeting are statutorily imposed, "public agencies cannot be held to the same high standard in preparing their agendas for these meetings." Id.