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 Spencer County Fiscal Court violated the Kentucky Open Meetings Act in failing to comply with notice requirements codified at KRS 61.823 prior to holding a meeting on September 5, 2012. Because that meeting was a regular meeting, rather than a special meeting, the Fiscal Court was not required to comply with KRS 61.823. However, the Fiscal Court violated the mandatory language of KRS 61.846(1) in failing to issue a written response to Lawrence Trageser's February 12, 2013, complaint within three business days of receipt. None of the remaining issues presented are justiciable in this forum.
By letter directed to Spencer County Deputy Judge Karen Curtsinger on February 12, 2013, Mr. Trageser alleged that "Spencer County Fiscal Court has violated the Open Meetings Act on numerous occasions, during the calendar year of 2012 and now 2013." Mr. Trageser advised that he already brought said "illegal activity" to the Fiscal Court's attention during one such "illegal" meeting on Wednesday, September 5, 2012. According to Mr. Trageser, the Fiscal Court violated the Open Meetings Act because that meeting was a special meeting but was not advertised in the media "nor posted on any entrances. NO specific agenda was produced or printed. Actions of the meetings did NOT follow the specific agenda and topics were discussed and acted upon, that were NOT included even in the provided agenda. " 1 Mr. Trageser further complained that rules governing the meetings of the Fiscal Court "are at best confusing and provide a very ambiguous procedure for common citizens seeking understanding of when [the] meetings are held during the complete year, under all circumstances and events." 2 He referenced Chapter 6 of the Spencer County Administrative Code, entitled "Operation of Fiscal Court" in support of his position. Although Mr. Trageser expressly sought a response to his complaint, given that the Fiscal Court "has done nothing to change or implement corrective action in this matter" despite being made aware of the alleged violations, he advised that he was going to file an Open Meetings Appeal. Having received no response of any kind, Mr. Trageser initiated this appeal by letter dated March 8, 2013, providing "a more detailed explanation of his complaint." 3 Specifically, he asserted that procedures for meetings of the Fiscal Court are not easily located nor do they include a copy of the "Kentucky [state government] holiday schedule." Mr. Trageser also noted that all residents do not have internet access and the "newspaper only publishes generic meeting times."
Upon receiving notification of Mr. Trageser's appeal from this office, Spencer County Attorney Ruth A. Hollan responded on behalf of the Fiscal Court. Pursuant to KRS 61.820, she advised, the Fiscal Court has adopted the following procedures for meetings:
A. Regular meetings of the Fiscal Court may be held on first Monday of every month at 9:00 a.m., and the third Monday of every month at 7:00 p.m., at the designated place.
B. Provided, however, that if the regular meeting day or date falls on a legal holiday, the meeting shall take place on the following Wednesday of the first Monday, or the following Tuesday of the third Monday at the same place and hour.
C. All meetings of members of Fiscal Court at which any public business is discussed or any action taken shall be open to the public at all times except as otherwise permitted by KRS 61.810.
D. The County Judge/Executive may call a special meeting of the Fiscal Court for the purpose of transacting any business over which the Fiscal Court has jurisdiction pursuant to and in accordance with KRS 67.100, the [sic] 24 hr. notice.
Inasmuch as the Fiscal Court held its meeting on September 5, 2012, in accordance with its regular meeting schedule or "procedures," the agency maintained that its meeting was a regular meeting rather than a special meeting. The Fiscal Court further asserted that Labor Day was the holiday in dispute and "it is common knowledge that Labor Day is a holiday recognized by the State of Kentucky. Pursuant to KRS 2.110(2), ' No person shall be compelled to labor on the first Monday in September (Labor Day) by any person.'" (Original emphasis.) Acknowledging that every household may not have internet access, the Fiscal Court noted that procedures for the Fiscal Court meetings "are available in the Spencer County Administrative Code handbook[,]" which is available both online at http://www.spencercountyky.gov/ and in "many of the Spencer County governmental offices and may be viewed or copied by anyone that makes an open records request." The Fiscal Court explained that it "does not have the authority to require thenewspaper to print anything." Pursuant to KRS 61.823, Ms. Hollan correctly observed, the agency is "required to give notice to media organizations that have requested to receive such notices of any special meetings." However, the Open Meetings Act does not require media notification of regular meetings. The Fiscal Court acknowledged that neither Deputy Judge Curtsinger nor Judge/Executive Bill Karrer, 4 to whom she forwarded Mr. Trageser's complaint upon receipt, chose to issue any response on behalf of the Fiscal Court, "as [Mr. Trageser] clearly stated in his [complaint] that he was filing an appeal with the Attorney General regardless of the response[.]" This declaration by Mr. Trageser did not relieve the Fiscal Court of its procedural duties under 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 Fiscal Court admittedly did not choose to respond to Mr. Trageser's February 12, 2013, complaint and this inaction constituted a violation of the Open Meetings Act notwithstanding his expressed intention to initiate an Open Meetings 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 Fiscal Court violated the Open Meetings Act in failing to do so. Id. 97-OMD-43; 11-OMD-114. In light of this determination, the question becomes whether the agency violated the Open Meetings Act in failing to comply with any or all of the notice requirements codified at KRS 61.823 prior to its meeting on September 5, 2012. Based upon the following, this office affirms the agency's belated disposition of Mr. Trageser's complaint.
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.
The record on appeal confirms that the Fiscal Court provided "a schedule of regular meetings" and made that schedule available to the public. In construing KRS 61.820 and its companion statute, KRS 61.823, relating to special meetings, 5 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)]). 6 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 (emphasis added).
The Fiscal Court did not deviate from its regular meeting schedule in holding its regularly scheduled meeting on Wednesday, September 5, 2012, rather than Monday, September 3, 2012, a recognized holiday; its regular meeting schedule addresses exactly that scenario in expressly providing "that if the regular meeting day or date falls on a legal holiday, the meeting shall take place on the following Wednesday of the first Monday." 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." (Emphasis added.) Because the Fiscal Court merely followed its regular meeting schedule in holding its regular monthly meeting on September 5, 2012, compliance with KRS 61.823 was not required; accordingly, this office finds no error in the actions of the Fiscal Court with the exception of its failure to issue a timely written response upon receipt of Mr. Trageser's complaint per KRS 61.846(1). Compare 02-OMD-181.
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:
Lawrence TrageserBill KarrerRuth A. Hollan
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