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 record on appeal supports Lynn Lawrence's allegations that the Elsmere Fire Protection District violated KRS 61.846(1) by failing to respond to her undated open meetings complaint and KRS 61.823(3) by failing to include an agenda in the notice of its May 20, 2013, special meeting. The district disputes her allegation that it also violated KRS 61.823(3) by failing to include an agenda in the notice of its March 26, 2013, special meeting and presents the meeting notice to substantiate its position. Although Ms. Lawrence counters that the proffered notice was not the posted notice accessible to the public, which omitted the agenda, but the notice disseminated to members of the district's board, of which she is a member, we cannot conclusively resolve this issue against the district given this factual dispute. If, however, the notice submitted to this office did not mirror the posted notice, and if, in fact, the posted notice omitted the meeting agenda, that omission constituted a second violation of KRS 61.823(3).
With regard to the substantiated allegations, we refer the parties to 13-OMD-094, a copy of which is attached hereto and incorporated by reference. That decision is identical on its facts and applicable law. It is therefore controlling. Ms. Lawrence advances a third claim. She alleges that the district violated KRS 61.823(3) by failing to include an agenda in the notice for its March 26, 2013, special meeting. The district counters, albeit belatedly, by producing a copy of the meeting notice. The notice states in part:
NOTICE OF SPECIAL MEETING OF THE BOARD OF TRUSTEES OF THE ELSMERE FIRE PROTECTION DISTRICT
On the 25th day of March, 2013, the Chairman called for a SPECIAL MEETING of the Board of Trustee of the Fire Protection District to be held:
AGENDA FOR SPECIAL MEETING:
Discussion and action at the special meeting will be strictly limited to those items specifically listed on the agenda in this notice.
Ms. Lawrence acknowledges receipt of this notice in her capacity as a board member, but asserts that the posted notice omitted the agenda, mirroring instead the posted notice for the May 20 special meeting that this office declared improper in 13-OMD-094.
The meeting notice required by KRS 61.823(3) must contain the date, time, and place of, as well as the agenda for , a special meeting regardless of whether it is distributed to agency members and the media or posted for public viewing. As we observed at page 3 of 13-OMD-094, "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 pubic right to 'advance notice of meetings conducted by public agencies.'" If, in fact, the notice posted in advance of the district's March 26, 2013, special meeting was not identical to the notice submitted by the district to this office in support of its position, but instead resembled the notice declared improper in 13-OMD-094, the district's omission of an agenda constituted a second violation of KRS 61.823(3). Unfortunately, the conflicting evidentiary record precludes conclusive resolution of this question.
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:
Lynn LawrenceRobert StegmanSteven C. MartinMatthew Smith