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 Benham City Council violated the Kentucky Open Meetings Act (hereinafter "Act") in failing to provide fair notice of the particular topics to be discussed or acted upon during its November 15, 2012, special meeting on the agenda posted for that meeting per KRS 61.823. Because agenda items like "Projects" and "Personnel" do not sufficiently describe the item(s) to be discussed or acted upon, the City Council violated the Act in failing to comply with KRS 61.823(3) , which prohibits "the practice of including open ended agenda items like old and new business, or open to counsel and floor . . . ." 01-OMD-175, p. 6; see also 03-OMD-149; 04-OMD-137; 06-OMD-008; 07-OMD-099. The City Council also violated KRS 61.823(3), pursuant to which "[d]iscussions and action at the meeting shall be limited to items listed on the agenda in the notice [,]" in discussing then Mayor John T. Dodd's resignation, and in voting to elect a new mayor. However, this office "is not empowered to declare void action taken at an illegal meeting, impose penalties for violations of the Act, or compel an agency to implement the remedial measures proposed." 08-OMD-005, p. 9. In failing to issue a final written response to Roy Silver's November 19, 2012, complaint in a timely manner, the City Council also violated the mandatory language of KRS 61.846(1).
By letter directed to the "Mayor, City of Benham" on November 19, 2012, in her capacity as presiding officer, Mr. Silver noted that during the November 15 special meeting of the City Council, "Mayor John Dodd instructed the City Clerk, April Childers to read his letter of resignation. The [C]ouncil selected Doug Robinson to serve as presiding officer for the meeting. The [C]ouncil then voted to select Shirley Dodd as the new mayor." According to Mr. Silver, four members of the City Council voted for Ms. Dodd, Councilman George Massey protested the vote, and Ms. Dodd abstained. Mr. Silver alleged that the agenda for the November 15 special meeting "did not contain specific agenda topics." Rather, items described as "Projects" and "Personnel" lacked the requisite specificity. He further claimed that in having the City Clerk read Mayor John Dodd's letter of resignation, and in voting to elect Shirley Dodd as the new Mayor, the City Council violated KRS 61.823, and subsection (3) in particular, because these items were not listed on the agenda. Mr. Silver noted that a mayor is "not personnel; he is the chief executive officer of the city." To remedy the alleged violations, Mr. Sliver proposed that Mayor Dodd "rule this meeting was a violation of the Open Meetings Act and declare all actions null and void."
By unsigned letter dated November 19, 2012, Mr. Silver was advised that his "letter" had been "received by the Mayor" and the agency was "in the process of consulting with the city's attorney at this time." The merits of Mr. Silver's complaint were not addressed nor did he receive any supplemental response. Accordingly, Mr. Silver initiated this appeal by letter dated December 17, 2012, reiterating his original complaint and further asserting that the City Council had also violated the Act in failing to issue a timely written response to said complaint. Upon receiving notification of Mr. Silver's appeal, Mayor Shirley Dodd responded on behalf of the City Council, maintaining that "proper procedure" was followed. She outlined the business discussed and the actions taken during the November 15 special meeting, 1 but failed to address the alleged violations of KRS 61.823 and 61.846(1). A review of the unrefuted evidence presented regarding the only issues justiciable in this forum 2 confirms that the City Council violated both provisions of the Open Meetings Act.
In 01-OMD-175, the Attorney General was first asked to determine if special meeting agenda items that included "discussion of old business, " "discussion of new business, " "open to floor, " and "open to counsel," were adequately specific to satisfy the requirements of KRS 61.823(3). The Attorney General concluded that the language of that provision, coupled with the statement of legislative policy codified at KRS 61.800, 3 and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," mandated "special meeting agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1, citing
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). In order to implement "'the intent of the legislature in enacting the Open Meetings Act . . . to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies, '" the Attorney General noted, the Act establishes specific requirements which a public agency must satisfy before conducting special meetings, including those codified at KRS 61.823(3), pursuant to which a "'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. '" 01-OMD-175, pp. 4-5, citing
E. W. Scripps Company v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990).
Of particular significance, this office further observed:
In construing this provision, the Attorney General has recognized that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business, " "new business, " "open to floor, " and "open to council." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. Accordingly, this office concluded that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." Id. at 6, 7.
Applying these principles to an Open Meetings Appeal in which an item listed on the agenda for a special meeting described as "Board and Presidential Leadership ad hoc Committee report" was challenged on the basis that it was not "sufficiently specific to ensure fair notice to the public that a vote on extension of the President's contract would be conducted," in 02-OMD-22 this office held:
While we believe that the [agency] might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as "old business, " and "new business. "
02-OMD-22, p. 7. Critical to our analysis there was the fact that the ad hoc committee, unlike the City Council, had only one charge, and that charge was to "'make recommendations to the [agency] concerning [the president's] contract, [and] it was apparent that action would be taken on the contract upon receipt of the committee's report.'" Id. Nevertheless, the Attorney General urged the agency to '"scrupulously comply with the notice requirements set forth at KRS 61.823," including the requirement of a written agenda aimed at "maximizing notice to the public.'" Id.
The facts presented here are more closely akin to those presented in 01-OMD-175. Fair notice of Mayor John Dodd's resignation 4 and the resulting need for election of a new mayor could not be imputed to the public from the generic term "Personnel, " nor was any indication that expenditure of HB 265 funds generally, or putting a roof on the new water plant specifically, would be discussed evident from the very general term "Projects." Both terms, while perhaps not equivalents thereof, are more comparable to impermissibly vague descriptions like "old business" and "new business. " 5 Each agenda item contained in the notice of a special meeting "must be sufficiently definite to permit the public to fairly understand the purpose or purposes for which the special meeting is to be held." 01-OMD-175, p. 4. The notice of the City Council's November 15 special meeting violated KRS 61.823(3) in this regard. See 07-OMD-099 (holding that vague description to "enter into executive session" violated KRS 61.823(3) as it did not give the public fair notice of matters to be discussed at the special meeting) ; compare 03-OMD-149 (item described as "Policy and Bylaws" presented a "very close question" but was not impermissibly vague) ; 10-OMD-017 (holding that "Minutes -- October 7, 2009" was not impermissibly vague) ; 12-OMD-146 ("Pursuant to KRS 61.810(1)(f) [sic] Discussions which might lead to the appointment, discipline, or dismissal of an individual employee," could not be properly equated with impermissibly vague descriptions like "old business" or "new business" ).
Having determined that items listed on the agenda were impermissibly vague, in 01-OMD-175 this office also recognized:
[T]he public has a right to expect strict compliance with the requirement that discussions and actions at the meeting be limited to items listed on the agenda contained in the notice. Because 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. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion, or action on, agenda items.
Accordingly, the Attorney General concluded that vaguely worded agenda items such as "old business" and "new business" "invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting, " and that the topics discussed, and the actions taken at the meeting were thus unauthorized. 01-OMD-175, p. 5. Conversely, in 02-OMD-22 this office concluded that based on the meeting agenda "fair notice could be imputed to the public that the [agency] would vote on the President's contract," 02-OMD-22, p. 1, and that the action did not exceed the scope of the challenged agenda item. Again, the facts of this appeal more closely resemble those which culminated in 01-OMD-175 and this office therefore reaches the same conclusion. Because the discussions held and the actions taken during the November 15 special meeting were not properly noticed on the agenda, the City Council also violated KRS 61.823(3) in this regard. See 12-OMD-080.
The remaining question is whether the City Council violated KRS 61.846(1) pursuant to which:
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. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
(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.
The City Council failed to issue a substantive written response within three business days of receiving Mr. Silver's complaint which, in all particulars, complied with KRS 61.846(1). No explanation has been offered for this deficiency. An unidentified individual promptly responded to Mr. Silver's complaint, but merely advised that the agency was consulting with its legal counsel. KRS 61.846(1) unquestionably requires more. As the Kentucky Court of Appeals noted in reference to procedural requirements of the Open Records 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. This holding applies with equal force to parallel requirements of the Open Meetings Act. See 10-OMD-171 (agency confirmed receipt of complaint in a timely manner, but violated KRS 61.846(1) in only advising that a response would be provided "as soon as possible"); 11-OMD-019 (Attorney General "finds no error in the Fiscal Court's apparent practice of seeking [advice of legal] counsel before responding to . . . complaints made under the Open Meetings Act in the interest of efficiency assuming that no delay beyond the statutorily authorized time frame of three business days occurs"); see also 11-OMD-023. In sum, the City Council violated both KRS 61.823(3) and 61.846(1) .
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:
Roy SilverShirley DoddRonald C. Cox
Footnotes
Footnotes
1 Mayor Dodd's factual summary, though more detailed, largely mirrored that of Mr. Silver in relevant part; however, she clarified that John Dodd's resignation letter "was read prior to the meeting being called to order." She also noted that the "matter of projects was discussed with [a] unanimous vote to put a new roof on the water plant with funds from HB 265."
2 This office has long recognized that its authority under KRS 61.846(2) is narrowly defined to include only "review[ing] the complaint and denial and issu[ing] within ten (10) [business] days, . . . a written decision stating whether the agency violated the provisions of [the Open Meetings Act]." In sum, this office is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4; 10-OMD-120.
3 KRS 61.800 provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
4 Setting aside the question of whether the resignation letter was improperly read prior to when the meeting was called to order, the fact remains that a vague description of "Personnel" did not constitute proper notice of the resulting discussion or the action of electing a new mayor. The audio recording of the November 15 special meeting enclosed with Mr. Silver's appeal confirms that "Personnel" was not intended to refer to any other discussion or action.
5 The agenda for the November 15, 2012, special meeting, a copy of which Mr. Silver attached to his appeal, read as follows:
AGENDA
Nov. 15, 2012
6:00 P.M.
Special Called Meeting
1. Prayer/Pledge
2. Projects
3. Personnel
4. Adjourn
5. Office of City Clerk -- April Childers