Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Spring Mill violated the Open Meetings Act when the city commission admittedly failed to hold regular meetings, instead holding special meetings in the mayor's home without public notice or posting of the agenda. In light of the City's admissions, we find that the City has violated the Act at such meetings.
By letter dated October 8, 2013, Lynn E. Rowland submitted a written complaint to Mayor Joseph E. Henning in which he alleged:
It is my belief that no notifications, or regularly scheduled meetings, have taken place in months, if not over a year now. Approximately 4 months ago, with my wife Judy as a witness, we were in commissioner Karen Nally's home when I requested to be advised of the next meeting which I would like to attend. She said that would not be a problem and immediately entered my cell phone number into hers so she could contact me. That was in March. As of this date, I have not heard anything. I am formally requesting that you follow the laws laid down by the Kentucky Revised Statutes and interpreted by the Attorney General[']s office and correctly and timely post as well as hold, monthly meetings and that these meetings not only be made public, but ample and correct notification be given to all residents of our city.
I also believe you to be in violation of special meetings which also required that written notice be placed in a conspicuous place for the public to be aware of, along with the agenda to be discussed.
I also believe no one is taking minutes for all meetings as required by law and am asking you how you plan to remedy these violations.
(Emphasis in original.) Having received no response, Mr. Rowland initiated an appeal to the Attorney General on October 18, 2013.
In a response dated October 26, Mayor Henning essentially admitted the majority of Mr. Rowland's allegations:
In response to [your] letter and request to review minutes, I will personally notify you of our next meeting. I have not been posting the sign due to the unavailable court house space, so we've been having them in my home. And a couple of people with questions or issues have attended. Had I been made aware of your request I certainly would have notified you also.
One of our commissioners has secured a location set at a certain time and place each month for the future.
We will have a regular meeting and will address any and all of your concerns.
Mayor Henning also sent the following response to the Attorney General's office on October 28, 2013:
Our fire house and court house have not been available on several occasions thereby delaying our meetings. We now have regular scheduled meetings again for the 2nd Wednesday of each month at the court house on Outerloop at 6:00 PM, room C. I will post our sign in advance of the meeting and minutes of all our meetings will be available for perusal.
As far as being in violation we are not aware of any violations as we have had meetings, taken minutes and had the public attend meetings in my home, when the court house and fire house are not available.
We note that the October 26 response occurred well after the three-day statutory deadline imposed by KRS 61.846(1), and some days after Mr. Rowland's appeal. This delay constituted a procedural violation of KRS 61.846(1).
The City, in substance, admits to the conduct alleged by Mr. Rowland, except for the allegation that it failed to keep minutes of its meetings. Thus, the record establishes that the City Commission has held a number of special meetings in lieu of regular meetings, conducted in Mayor Henning's private residence, with no posted meeting notice or agenda. While the City personally notified a few interested individuals of its meetings, there was no attempt to post a notice for the general public. The record does not reflect whether any news media were notified pursuant to KRS 61.823(4)(a).
The uncontested facts indicate that the City of Spring Mill has violated KRS 61.823(3), which 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 of the meeting shall be limited to items listed on the agenda in the notice.
It is likewise uncontested that the City failed to comply with KRS 61.823(4)(c), which provides:
As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
We further question whether a meeting in the mayor's private home would comply with KRS 61.820's requirement that all meetings of public agencies be held in "places which are convenient to the public." In City of Lexington v. Davis, 310 Ky. 751, 221 S.W.2d 659 (1949), the former Court of Appeals, construing prior law, held that a city Board of Commissioners meeting reconvened in the mayor's home when he was ill and confined to his bedroom violated a statute which simply provided that "[a]ll meetings shall be public." 1 The Court asked rhetorically:
Would the ordinary citizen who had in mind a serious protest to something about to be done feel free to go into the bedroom of a man who was seriously ill to make such protest even though he had been invited so to do? In the second place, in the absence of invitation, even though the Mayor had been a well man, would there be freedom upon the part of the public to go into his home merely on the announcement that the regular session would adjourn to the mayor's home? [T]o permit such procedure would create a situation that might furnish opportunity to set up a facade for secrecy and possibly even legislation in executive session. Such a meeting is not a public meeting as contemplated under the statute[.]
310 Ky. at 755, 221 S.W.2d at 661-62 (emphasis added). Under the present KRS 61.820, explicitly requiring a meeting place "convenient to the public," we find that the above analysis applies even more clearly. A public meeting must be held in "a place from which no part of the citizens ? may be excluded by reason of not feeling they may freely attend. " City of Lexington v. Davis, supra, 310 Ky. at 754, 221 S.W.2d at 661 (quoted in 02-OMD-78). Accordingly, the special meetings in the mayor's private home were not held in a place "convenient to the public" consistent with KRS 61.820.
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:
Mr. Lynn E. RowlandHon. Joseph E. Henning
Footnotes
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