Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Nelson County Fiscal Court violated the Open Meetings Act prior to its September 5, 2012, meeting. The record on appeal substantiates the violations alleged.
In a written complaint hand-delivered to Nelson County Judge/Executive Dean Watts on September 26, 2012, Kevin Brumley alleged that the fiscal court violated KRS 61.823(3) by including nonspecific topics on the special meeting agenda it was obligated to publish because its regularly scheduled meeting was rescheduled as a result of the Labor Day holiday. Additionally, he alleged that the fiscal court violated KRS 61.823(4)(c) by failing to post the meeting notice/ agenda at least twenty-four hours before the special meeting. Finally, Mr. Brumley alleged that the fiscal court privately "met in a quorum and discussed county business, agenda item (1), from 9:00 a.m. until 9:23 a.m. prior to . . . calling the meeting to order at 9:23 a.m. to discuss minutes, bills and transfers." As a means of remedying these violations, Mr. Brumley requested, inter alia , that the fiscal court declare the special meeting "null and void in its entirety due to noncompliance of [sic] the Open Meetings Act . . . ."
In a timely written response, Judge Watts advised Mr. Brumley that the challenged meeting conformed to the requirements of the Open Meetings Act as implemented by the fiscal court in Section 610.1 of the county administrative code. 1 He acknowledged that the regular meeting "was moved from Tuesday to Wednesday to accommodate the Monday Labor Day Holiday, " but maintained that written notice of the meetings, including the date, time, place, and agenda was transmitted to all agency members and the media and posted "more than 24 hours before any action was taken." It was his position that Section 610.1 "complies with KRS 61.820." Judge Watts did not respond to Mr. Brumley's allegation that the fiscal court violated the Open Meetings Act by conducting a private meeting at which county business was discussed, but from which the public was excluded, between 9:00 a.m. and 9:23 a.m. when the meeting was called to order.
In supplemental correspondence directed to this office after Mr. Brumley initiated his appeal, the fiscal court asserted that it substantially complied with the requirements of the Act prior to, and in the course of, its September 5 meeting. The fiscal court explained:
From 9:00 a.m. until 9:23 a.m. prior to the County Judge Executive calling to order the business portion of the Nelson Fiscal Court meeting, a representative from the North Nelson Water District made a presentation to the Nelson Fiscal Court. That presentation was for information purposes only and merely informed the Nelson Fiscal Court of things that the North Nelson Water District was doing. As it was informational only, the North Nelson Water District was not proposing any action on any matter that would be taken by the Nelson Fiscal Court. The Nelson Fiscal Court did not take any action on any matter discussed by the North Nelson Water District nor did the North Nelson Water District propose any project or any situation that would be soliciting the involvement of the Nelson Fiscal Court in any way. Therefore no public business of the Nelson Fiscal Court was being discussed by the unilateral presentation of the North Nelson Water District representative.
The fiscal court rejected Mr. Brumley's claim that the meeting agenda was deficient because it contained an item for "old and new business, " arguing that the tax rate ordinance to which he ultimately objected "was not taken up under old or new business" but instead appeared as a specific item. 2 Mr. Brumley's allegation was, in the fiscal court's view, "not relevant to his complaint." In response to Mr. Brumley's claim that written notice was not posted at least twenty-four hours before the meeting, the fiscal court observed:
The agenda was posted at 9:20 a.m. on Tuesday, September 4, 2012. The meeting was called to order at 9:23 a.m. on Wednesday, September 5, 2012. Therefore, the agenda was '. . . posted at least twenty-four (24) hours before the special meeting. '
While the undersigned acknowledges the meeting was scheduled for 9:00 a.m. and the best practice would be to have posted the agenda prior to 9:00 a.m. on Tuesday, September 4, 2012, the Nelson Fiscal Court has nevertheless substantially complied 3 with KRS 61.823(4)(c).
Respectfully, we do not agree.
To begin, the fiscal court's original response to Mr. Brumley's complaint was deficient. The court failed to address his allegation that a quorum of its members met behind closed doors between 9:00 a.m. and 9:23 a.m., notwithstanding the 9:00 a.m. posted meeting time, publicly convening the meeting at 9:23 a.m. This omission constituted a violation of KRS 61.846(1) insofar as the fiscal court failed to "include a statement of the specific statute or statutes supporting . . . [its action] and a brief explanation of how the statute or statutes apply."
The fiscal court's belated attempt to defend the closed meeting was unavailing. The fiscal court did not dispute Mr. Brumley's claim that a quorum of its members was present. Nor did it assert that the subject discussed qualified under one of the statutory exceptions codified at KRS 61.810(1)(a) through (m). Indeed, it appears as the first item on the meeting agenda and no indication is given that a closed session was contemplated. The fact that the discussion focused on "things that the North Nelson Water District was doing," and was "informational" only, did not relieve the fiscal court of the duty to conduct the discussion in open session. 4 KRS 61.810(1). Per KRS 61.805(1), the term "meeting" encompasses "all gatherings of every kind, . . . regardless of whether 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. " There was simply no basis for excluding the public from this meeting of a quorum of the members of the Nelson County Fiscal Court. Accord, 00-OMD-114.
With reference to the remaining allegations of Mr. Brumley's complaint, we find that the fiscal court's position is unsupported by the Open Meetings Act. The fiscal court did not attempt to characterize the September 5 meeting as a regular meeting, acknowledging that it was rescheduled from Tuesday to Wednesday and that a rescheduled regular meeting is a special meeting. 94-OMD-50; 99-OMD-153; 01-OMD-175. Nevertheless, the fiscal court appears to have treated the meeting as a "hybrid" meeting. For example, the fiscal court included nonspecific topics on the meeting agenda, as if it were a regular meeting, but notified the fiscal court members and the media of the meeting, as if it were a special meeting. Clearly, the fiscal court failed to strictly comply with the legal requirements for conducting a special meeting. It is by this standard that we assess whether the fiscal court violated provisions of the Open Meetings Act and not by the substantial compliance standard employed by the courts in determining whether to void the fiscal court's actions. "The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," Kentucky's courts have declared, "[and t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education v. Ratliff, 855 S.W.2d 921, 923 (Ky. 1997).
Under this standard, the Nelson County Fiscal Court cannot be said to have adhered to the requirements of the Open Meetings Act. The fiscal court did, in fact, exclude the public from discussions relating to the first agenda item without statutory justification. The fiscal court did, in fact, include a nonspecific topic on its agenda in contravention of KRS 61.823(3). The fiscal court did, in fact, post its meeting notice for the scheduled 9:00 meeting twenty minutes short of the required twenty-four hour requirements found at KRS 61.823(4)(b). While this conduct may not justify a judicial determination that actions taken at the meeting are void, it represented less than strict compliance with the requirements of the Open Meetings Act and 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:
Kevin BrumleyDean WattsJohn S. Kelley, Jr.
Footnotes
Footnotes
1 Section 610.1 states:
Regular Meetings of the Nelson County Fiscal Court shall be held at the Old Courthouse, 2nd Floor on the 1st Tuesday of each month at 9:00 a.m. and on the 3rd Tuesday a 9:00 a.m. Regular Fiscal Court Meetings may be changed with Fiscal Court approval to accommodate holidays, Election Day, or special circumstances. News media must be notified as to the change of a regular meeting date.
2 The meeting agenda appears as follows:
ATTN: MOVED DAY
Nelson Fiscal Court
Regular Meeting Agenda
Wednesday, September 5, 2012
9:00 a.m.
Minutes -- Bills -- Transfers
1. Special guests from North Nelson Water District.
2. Second reading on Zoning Request # 2369.
3. Second reading on 2012-2013 Tax rates.
4. Jail report.
5. EMS report.
6. Landfill/Solid Waste report.
7. Road Department report::
A. Pottershop Road bridge update;
B. Blacktop list;
C. State agreement for blacktop;
D. Bond at Blazer Heights.
8. Old or new business.
3 KRS 61.848(5) establishes the "substantial compliance" standard. It provides:
Any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823 shall be voidable by a court of competent jurisdiction.
4 As noted, the fiscal court originally scheduled this discussion as the first item on the agenda for the September 5 meeting. Because no record of the discussion exists, we are not prepared to accept the fiscal court's attempt to characterize it as "nonpublic" business.