Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Elsmere Fire Protection District violated KRS 61.846(1) by failing to respond to Terry Whittaker's May 21, 2013, open meetings complaint and KRS 61.823(3) by failing to include an agenda in the notice of its May 20, 2013, special meeting. 1
The district denies neither allegation but offers an explanation for the violation of KRS 61.846(1) based on the timing of the submission of Ms. Whittaker's complaint 2 and proof of remediation of the violation of KRS 61.823(3) based on subsequent ratification of the action taken at the improperly noticed meeting. 3 Having reviewed the record on appeal, we find that the claimed violations are substantiated. We do not address the extenuating circumstances impeding a timely response or subsequent remediation efforts cited by the district in its defense.
The district's failure to respond to Ms. Whittaker's May 21 complaint in writing, and within three business days, constituted a violation of KRS 61.846(1). That statute establishes the requirements for initiating a challenge to an agency's conduct of its meetings and the agency's duties in responding to the challenge:
The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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.
Although the district provided Ms. Whittaker with a copy of its June 11 response to the Attorney General's 40 KAR 1:030 Section 2 notification of receipt of her open meetings appeal, the record on appeal is devoid of any proof that, to date, the district has discharged its KRS 61.846(1) duty by responding to her original complaint.
"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). Consistent with this view, KRS 61.823 establishes notice requirements that must be satisfied in advance of a special meeting. Among these, KRS 61.823(3) requires public agencies to:
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 actions at the meeting shall be limited to items listed on the agenda in the notice.
(Emphasis added.) Numerous decisions of this office recognize the necessity of written notice of special meetings that includes a meeting agenda consisting of specific agenda topics. See, e.g., 94-OMD-119; 96-OMD-216; 98-OMD-74; 99-OMD-203; 01-OMD-135, note 4; 01-OMD-154; 02-OMD-11; 02-OMD-121; 13-OMD-006. Omission of the agenda impedes the public's ability to ascertain the nature of the public business to be discussed at the upcoming special meeting compromising the public's right to "advance notice of meetings conducted by public agencies" and the matters to be discussed or action to be taken at the meetings.
E.W. Scripps Co. v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990). These decisions, coupled with the express language of KRS 61.823(3) and the policies that inform it, compel us to conclude that the Elsmere Fire Protection District violated KRS 61.823(3) when it failed to include an agenda in the posted notice of its May 20, 2013, meeting.
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:
Terry WhittakerRobert StegmanSteven C. MartinMatthew C. Smith
Footnotes
Footnotes
1 Ms. Whittaker furnished this office with a copy of the posted special meeting notice. It reads:
MEETING DATE CHANGE NOTICE
At the April 22, 2013, meeting of the Elsmere Fire District, the board voted to change the date of the May meeting to Monday, May 20, 2013 at 7 PM. The change is due to the Memorial Day holiday.
The hearing will be held at the Elsmere Fire Station on Garvey Avenue in Elsmere.
Robert Stegman
Chairman