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 City of Glencoe violated the Kentucky Open Meetings Act in failing to comply with notice requirements codified at KRS 61.823 prior to holding a special meeting on August 19, 2013. By letter directed to Mayor James Nantz on August 24, 2013, Michael Murphy submitted a complaint per KRS 61.846(1), asserting that a meeting of the Glencoe Board of Adjustment 1 was held on Monday, August 19, 2013, at 2:30 p.m. for the purpose of "discussing placement of mobile homes within the City of Glencoe," and while the City "has every right to discuss and to take action on zoning issues," the City has "no right to deny the public an opportunity to attend such meetings by not posting the required notice along with the agenda. " Specifically, he alleged that the City failed to comply with KRS 61.823(2), (3), and (4)(b). To remedy the alleged violations, Mr. Murphy asked that each of the aforementioned provisions "and any other required state statutes be strictly applied." In addition, he asked the City to "post all notices of special meetings along with the agenda of any committee(s), board(s) and[/]or agency appointed by the [C]ity in the windows of the [C]ity building, since the public has no access to the building due to no regular office hours."
By letter dated September 16, 2013, Mr. Murphy initiated this appeal. Mr. Murphy acknowledged that during the September 9, 2013, meeting of the City Council, Mayor Nantz addressed the City Council regarding his August 24 complaint. Following discussion of the allegations, the City Council agreed to his proposed remedies though Mayor Nantz failed to issue a written response within the required time frame per KRS 61.846(1). Although Mr. Murphy was "thankful that the issue was addressed" on September 9 during the meeting of the City Council, he was concerned that he may not have received a response of any kind if not for his attendance. Mr. Murphy asserted that Mayor Nantz's delay in responding to his complaint was a denial in part, "since he waited for legislative action or approval, which is not required under KRS 61.846." His point is well-taken. "The Act itself does not recognize a class of violations of lesser gravity than the remaining violations, and therefore capable of being dismissed as merely 'technical.'" 00-OMD-114, p. 3.
Upon receiving notification of Mr. Murphy's appeal from this office, Ms. Hubbard responded on behalf of the City. She advised that the City "offered Mr. Murphy his choice of remedy in regards to his written complaint. Mr. Murphy agreed in the regular meeting that he was satisfied with strict compliance with the statute." The Mayor stated that a schedule of regular meetings will be established for the Board of Adjustment by ordinance, Ms. Hubbard explained, and that notice of any special meeting will be posted on the door with proper written notification provided to members and the newspaper being "strictly enforced." As the City Attorney, Ms. Hubbard "agree[d]" that a written response to a complaint is required within three (3) business days under KRS 61.846(1). She noted that in the future the City "needs to put in place the resources to quickly answer written letters." However, in her view, Mr. Murphy has no grounds for appeal in this matter as he does not challenge the adequacy of the remedy as required under KRS 61.846(3)(a). This office respectfully disagrees. 2
Resolution of the single question presented turns on the mandatory language of KRS 61.846(1), pursuant to which:
. . . The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. 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. . . . 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 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. 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 13-OMD-005.
Here, as in 07-OMD-264, "the fact that the Mayor acted on the complaint at the meeting did not relieve him of the requirement to respond to the complaint in writing within the three (3) day period, particularly when the complaint requests that the agency take action in the future." Id., p. 3. See 10-OMD-171 (failure to issue a substantive written response within three business days of receipt violates KRS 61.846(1), which "unquestionably requires more" than confirming receipt of complaint and indicating that a response will be issued "as soon as possible"); 11-OMD-010 (Mayor responded on behalf of City Council to appeal but failed to discharge his duty as presiding officer of the Council by issuing timely written response to complaint); 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"); 13-OMD-049 (declaration by complainant of intention to file Open Meetings Appeal did not relieve public agency of its procedural duties under the Act). In sum, "[a] complainant may, of course, agree to a reasonable delay, but failing to issue a final written response within three business days of receiving a complaint, regardless of the reason, constitutes a violation of KRS 61.846(1)." 11-OMD-023, p. 9.
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.
Footnotes
Footnotes