Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Spencer County Fiscal Court violated the Open Meetings Act prior to special meetings scheduled for September 6, 2013, and September 10, 2013, by issuing special meeting agendas that did not conform to KRS 61.823(3). We find that the agendas were deficient insofar as they failed to give fair notice of the particular topics to be discussed or acted upon at the special called meetings. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997).
On September 15, 2013, Lawrence Trageser submitted a written complaint to the Spencer County Fiscal Court in which he alleged:
Starting on Friday September 6, 2013, through Friday September 13, 2013, to exclude the weekend, the SPECIAL MEETING agendas have NOT conformed to KRS 61.823 subsection (3).
The agenda items listed are NOT specific agenda topics and the repetitive nature of having a SPECIAL MEETING everyday also lends to the confusion of what exactly the specific topics are.
An example would be bills, that day's bills, that month's bills, a gravel bill, or a medical bill.
As a means of remedying the violation, Mr. Trageser proposed that the fiscal court "clearly identify each detailed item listed for discussion and cease and desist conducting SPECIAL MEETINGS for the purpose of conducting business operations . . . ."
In a response dated September 20, 2013, the fiscal court responded to Mr. Trageser's complaint, asserting:
The agendas for those special meetings stated one item to be addressed (C) New business, paragraph (1) Approve county expenditures, purchases, bills and transfers. Those agendas were not open ended but specified that the only topic to be addressed was the county expenditures, purchases, bills, and transfers. Any member of the general public would know that the only item to be discussed was whether the Court would approve the expenditures, purchases, and bills and transfer the money to the appropriate accounts in order to do so.
We disagree.
In 01-OMD-175, this office addressed the degree of specificity required of a public agency to fulfill its statutory obligations under KRS 61.823(3) 1 in light of 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." Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). In Ratliff , the Court echoed an earlier holding of the Kentucky Court of Appeals declaring that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. " At page 5 of 01-OMD-175, we opined that the definition of the term agenda "contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public." Continuing, we observed:
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." Such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
Id. Thus, we concluded, "the practice of including open-ended agenda items like old and new business, or open to council or 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 7; accord 13-OMD-005 (holding that agenda items for "projects" and "personnel" were not sufficiently specific to satisfy the requirements of KRS 61.823(3)).
In a separate line of open meetings decisions, this office addressed the impediments to maximizing public notice of agency meetings and actions occasioned by multiple special meetings and frequent deviation from the regular meeting schedule. Citing 09-OMD-119, p. 6, for the proposition that "special meetings are the exception to the 'rule' of a regular schedule found at KRS 61.820 ," in 11-OMD-129 we observed:
[K]knowledge of special meetings cannot be imputed to the public and, absent successful notification of special meetings to the public consistent with KRS 61.823, "whatever governing occurs" is not likely to "take place in the full view of the public."
11-OMD-129, p. 3. In the latter decision, we focused on the timing of the special meeting notices since the locality served by the fiscal court whose actions were challenged had only one newspaper and that newspaper circulated only once a week. At page 4 of 11-OMD-129, we noted:
[S]tanding alone, [the fiscal court's] election to conduct at least twelve special meetings in a seven month period does not violate any provision of the Open Meetings Act. If, however, proof was presented that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny, this office would find a violation of KRS 61.820, requiring public agencies to hold their meetings "at specified times and places convenient to the public" and "provide for a schedule of regular meetings." The likelihood of the Attorney General reaching this conclusion is far greater in a community whose only media organizations publish and/or broadcast on a limited basis. The best practice for public agencies operating in this environment is to conduct agency business during regular meetings, at those times and places specified in their regular meeting schedules, even if this means increasing the number of regular meetings per month. Where the need for a special meeting arises, such agencies should make an effort to transmit meeting notice to the media "as soon as possible," rather than transmitting it "at least twenty-four hours" before the meeting, to facilitate media publication of special meeting notice.
In the appeal before us, we focus on both the adequacy of the Spencer County Fiscal Court's September 6 and 10 special meeting notices and the apparent frequency of its special meetings. 2
We find that the special meeting notices attached to Mr. Trageser's open meetings appeal are deficient insofar as they do not contain sufficiently specific "descriptions of the items to be discussed to ensure fair notice to the public." 01-OMD-175, p. 5, cited with approval in 13-ORD-005. The 2:00 p.m. September 6 special meeting notice 3 identifies two agenda items: "1) Discuss county business" and "2) Approve county expenditures, purchases, and bills." The 3:30 p.m. September 10, 2013, special meeting notice identifies one agenda item: "1) Approve county expenditures, purchases, bills, and transfers." Clearly, the first item on the September 6 special meeting notice, "discuss county business" constitutes a "vaguely worded description [that] invites discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. " Although a closer question, we also believe that "approve county expenditures, purchases, bills, and transfers" is insufficiently specific, bearing a marked similarity to the agenda items, "projects" and "personnel, " that were deemed insufficiently specific in 13-OMD-005. Assuming that Spencer County is served by a daily newspaper that can provide timely notice of special called meetings, it avails Spencer County's residents naught to obtain timely notice containing an inadequate description of the items to be discussed at the special called meeting. If the matters to be discussed at these meetings are limited to county expenditures, purchases, and bills, we believe it is incumbent on the Spencer County Fiscal Court to identify the nature of the expenditure (s), purchase(s), or bill(s) necessitating the special called meeting so that a resident interested in, or affected by, for example, the sheriff's expenditures, or software purchases, or bills submitted for the construction of tower, can rearrange his or her schedule so that he or she can attend.
Mr. Trageser alleges, but presents no specific proof, that during the referenced period the Spencer County Fiscal Court conducted a special meeting every day. Although the fiscal court does not dispute this allegation, the record on appeal contains no proof verifying Mr. Trageser's allegation. As noted, in 11-OMD-129 this office stated that "if proof was presented that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny, " we would be inclined to "find a violation of KRS 61.820, requiring public agencies to hold their meetings 'at specified times and places convenient to the public' and 'provide for a schedule of regular meetings.'" In the absence of such proof, we find no violation of KRS 61.820. Nevertheless, we urge the Spencer County Fiscal Court to review 11-OMD-129 to ensure strict compliance with the express requirements of the Open Meetings Act and to facilitate maximum public knowledge of, and participation in, its meetings.
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 Hollan
Footnotes
Footnotes
1 KRS 61.823(3) provides:
The 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.
2 The record on appeal gives no indication whether Spencer County is served by a newspaper with daily circulation.
3 Our analysis is not altered by the fact that the noticed special meetings did not occur because a quorum of the members did not attend the meeting, and it was therefore cancelled. Mr. Trageser does not challenge the conduct of the fiscal court in the course of the meeting but, instead, challenges the adequacy of the special meeting notice that preceded it.