13-OMD-208

13-OMD-208

December 16, 2013

In re:        Lawrence Trageser/Spencer County 911 Commission, Spencer County Judge/Executive, and Mayor of the City of Taylorsville

Summary:        Spencer County 911 Commission violated the Open Meetings Act in failing to comply with notice requirements codified at KRS 61.823 prior to a special meeting scheduled for October 30. The Commission and the Mayor of Taylorsville violated KRS 61.846(1) in failing to issue a timely written response upon receiving a complaint alleging violations of the Act; however, the record on appeal does not support a finding that other violations were committed.            

Open Meetings Decision

        The question presented in this appeal is whether the Spencer County 911 Commission,¹ the Spencer County Judge/Executive, and the Mayor of the City of Taylorsville violated the Open Meetings Act by “conducting and engaging in an illegal Special Meeting on Wednesday, October 30, 2013.”  By letter directed to 911 Commission Chairman/Taylorsville Police Chief Toby Lewis, Spencer County Judge/Executive Bill Karrer, and Taylorsville Mayor Don Pay on November 9, 2013, Lawrence Trageser alleged that all three did so “willfully and with the intent to circumvent the law and deny the public knowledge of the meeting and the content discussed.”  Specifically, he alleged that a proper notice of the meeting was not posted, no agenda was provided, and the discussions of the agency thus failed to follow a special meeting agenda. Mr. Trageser also challenged the failure of the Commission to record minutes of the meeting per KRS 61.835 and noted that since becoming Chairman, Mr. Lewis “dropped its regular meeting schedule of every month on the first or second Wednesday to every quarter without a specific Wednesday.”  He was unable to locate any records in the possession of the Judge/Executive or the City of Taylorsville documenting any vote or approval of a new regular meeting schedule. Three of the 911 Commission members were present, he noted, “and Chairman Lewis continued to engage in a meeting with other members and officials, who discussed and engaged in the public business relating to future action of the 911 Commission to include Judge Karrer and Mayor Pay.”  In order to remedy the alleged violations, Mr. Trageser sought “relief in the form of a documented regular schedule of meeting dates provided to both local government bodies as well as the public, an address listed for correspondence to the 911 Commission,” and for the agency to “cease and desist engaging in illegal meetings of any type,” comply with all of the notice requirements for special meetings codified at KRS 61.823(3) and (4), upon which he implicitly relied, and “record minutes of all meetings,” including special meetings, per KRS 61.835. 

        By letter dated November 12, 2013, Spencer County Attorney Ruth A. Hollan responded on behalf of Judge Karrer, asserting that he “did not violate the Open Meeting[s] Act when he attended a meeting of the 911 Commission on October 30, 2013, as he is not a member of the Commission. Judge Karrer merely attended the meeting as a member of the public.”  Neither Chairman Lewis nor Mayor Pay responded to Mr. Trageser’s complaint.  Mr. Trageser initiated this appeal by letter dated November 24, 2013, arguing that a member of the public does not receive a personal notification of a special meeting like Judge Karrer did nor does a member of the public have an opportunity to “comment, instruct, discuss, suggest, or oppose any and all issues of business being engaged in by the agency. A member of the public is allowed three minutes to comment, period.”  In his view, Judge Karrer, who presides over the Spencer County Fiscal Court and votes on any recommendation of the Commission, is “clearly imposing his control and power over the 911 Commission” unlike a “member of the public.”  

        The record on appeal establishes that Chief Lewis and Mayor Pay violated KRS 61.846(1) in failing to issue a timely written response to Mr. Trageser’s complaint. Because the 911 Commission is a “public agency” within the meaning of KRS 61.805(2),² it was required to either comply with KRS 61.820, or, alternatively, treat all of its meetings as special meetings and strictly comply with KRS 61.823. In admittedly failing to comply with either KRS 61.820 or 61.823, the Commission violated the Open Meetings Act.³  However, the record on appeal does not support a finding that other violations were committed.

        Upon receiving notification of the instant appeal from this office, Chairman Lewis advised that he called a meeting of the “911 committee” after Mayor Pay called him and indicated that “the sheriff had some issue[.]”  Chairman Lewis explained that he notified all of the members by e-mail, a copy of which Mr. Trageser attached to his appeal. He did not “have an agenda” because he “did not know what the issue was. It could have been the radio system or the computer system.”  Rather than “go back and forth with all the members,” Chairman Lewis called the meeting for October 30 at 10:00 a.m. The only members who attended, he continued, “were Capt. White with the Kentucky State Police, Nathan Nation, Fire Chief for Taylorsville/Spencer County and me. Mayor Pay was present and Judge Bill Karrer came in and out of the meeting as he had another meeting at the same time.”  Chairman Lewis advised that neither Mayor Pay nor Judge Karrer is a member of the committee. Judge Karrer “brought budget information with him in the event it was needed.”  Since a quorum did not attend, he concluded, a “meeting” did not occur. However, in the future the Commission will meet “quarterly at a specific time instead of just on an ‘as needed basis’ and an agenda will be properly posted.”

        By separate letter, Ms. Hollan also responded to Mr. Trageser’s appeal. Ms. Hollan confirmed that Judge Karrer “did receive an email notification of the meeting from Chief Lewis on October 29, 2013.”  Judge Karrer attended the meeting as requested, she advised, but he “arrived late and was in and out of the meeting as he was meeting with a vendor at the same time. Judge Karrer presented the commission members information regarding the 911 budget.”⁴  The Spencer County Fiscal Court and the City of Taylorsville have created many commissions, Ms. Hollan observed, but the fact that Judge Karrer is a member of the Fiscal Court does not bar him from attending public meetings as a member of the public or presenting information at those meetings.  This office agrees.        

        The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), provides that “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]”  Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed⁵ or action is taken. KRS 61.820 provides that all meetings of all public agencies, “and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public.”  It further mandates that all public agencies “provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency.”  The term “meeting” is broadly defined at KRS 61.805(1) as “all gatherings of every kind . . . regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.”  In sum, all gatherings of a quorum of the Commission at which it discussed public business or took action were meetings of a public agency subject to provisions of the Open Meetings Act. See 06-OMD-068 (advisory role of committee does not warrant a different outcome); 12-OMD-181.

        On appeal Chairman Lewis acknowledged that all members of the Commission, Judge Karrer, and Mayor Pay received notification of the October 30 meeting, as the October 29 e-mail of record confirms, and he did not dispute that no public notice was provided. He also conceded that no agenda was provided nor was any regular meeting schedule being followed. In 10-OMD-120, this office found that as in 03-OMD-021, the agency whose actions were at issue “’has not substantiated that it has adopted a schedule of regular meetings and made it available to the public,” and “thus it failed to demonstrate that [it acted] in compliance with the requirements of KRS 61.820.’”  10-OMD-120, p. 3, quoting 03-OMD-021, p. 4. There was no question as to whether the public agency needed to meet on a regular basis in those cases. However, in 99-OMD-166, this office was asked to determine whether the City of Benton Park Board’s failure to establish a schedule of regular meetings constituted a violation of KRS 61.820. Having quoted the language of KRS 61.820, the Attorney General reasoned:

[T]he phrase “or by whatever other means may be required for the conduct of business of that public agency” invests the Board with some latitude in determining whether to meet on a regular or as needed basis. In the latter case, the Board must treat all of its meetings as special meetings and scrupulously comply with the notice requirements set forth at KRS 61.823. This, again, would promote the express purpose for which the Open Meetings Law was enacted, namely, to maximize notice of public meetings, in the same manner as a regular schedule of meetings, and at the same time eliminate the needless expenditure of public resources for unnecessary meetings. . . .

While we continue to ascribe to the view that the Open Meetings Act contemplates that public agencies will establish a regular me[e]ting schedule “by ordinance, order, resolution, [or] bylaw[s],” and that this method of conducting meetings is clearly favored, we conclude that the Park Board’s failure to do so does not violate the Open Meetings Law so long as the Board strictly complies with the requirements of KRS 61.823, treating all of its meetings as special meetings.

99-OMD-166, pp. 5-6 (some emphasis added).⁶  

        The 911 Commission has not disputed the applicability of KRS 61.820. Compare 10-OMD-143. Even assuming the Commission had asserted that its failure to comply with KRS 61.820 was due to a lack of sufficient business to justify meeting on a regular basis, the fact remains that it was required, in the alternative, to “scrupulously comply” with all of the notice requirements for special meetings codified at KRS 61.823 as every meeting is either a regular meeting or a special meeting. The Commission has not disputed that it failed to comply with KRS 61.820 nor has any evidence been presented to suggest compliance with KRS 61.823 was attempted when the Chairman decided to hold a meeting. “The language of the statute directing agency action is exact.”  Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). KRS 61.823 requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least twenty-four (24) hours before the meeting is to occur. This notice may be “delivered personally, transmitted by facsimile machine, or mailed . . .,” or sent via electronic mail per KRS 61.823(4)(b). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. Public agencies must comply with all of these requirements. See 12-OMD-156 (copy enclosed). In failing to either comply with KRS 61.820, or comply with all notice requirements for special meetings codified at KRS 61.823, the Commission violated the Open Meetings Act.  

        Pursuant to KRS 61.846(1), 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. . . .”  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; 10-OMD-171. Neither Chief Lewis nor Mayor Pay/the City responded to Mr. Trageser’s complaint until after he initiated this appeal. Such inaction also constituted a violation. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings 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. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint and neither the Chairman of the Commission nor Mayor Pay did so.  Id. 97-OMD-43; 11-OMD-114. 

        Mr. Trageser’s remaining contention is that Judge Karrer and the Commission violated the Open Meetings Act insofar as Judge Karrer attended the meeting and was permitted to present information regarding the budget for the Commission. While his point is well-taken regarding the negative perception that may have been created when the Mayor and the Judge were notified individually, but proper notice to the public was not provided, the agency’s failure to comply with KRS 61.823 has already been addressed.  Chairman Lewis agreed to remedy this deficiency in the future by establishing and following a regular meeting schedule and fully complying with KRS 61.823 when deviating from that schedule.

        The record is undisputed as to whether a quorum of the Fiscal Court, over which Judge Karrer presides, or the City Commission, over which Mayor Pay presides, attended the meeting or improperly discussed public business. In the absence of a quorum of either agency, this office has no basis upon which to conclude that a violation of the Act was committed merely because Judge Karrer and Mayor Pay attended the intended October 30 special meeting of the 911 Commission (also not a quorum though it would not alter the analysis in this respect) during which it discussed public business within its charge.  To hold otherwise would essentially prevent a public agency from being able to obtain relevant and necessary information required to discharge its function(s).  “Nothing in the Open Meetings Act categorically prohibits members of a public agency from attending a public meeting of a committee [or commission] to which they do not belong.”  12-OMD-194, p. 3 “(If the Finance Committee was discussing solely issues within its competence during a lawfully noticed public meeting, we do not see the harm to the purposes of the Open Meetings Act from the presence and public participation of other City Council members.”).  While it certainly is possible to imagine a scenario where members of a public agency “might use such attendance as a subterfuge to evade the notice requirements of KRS 61.823, there is no evidence of such intent in this case.”  Id. Based upon the foregoing, this office finds that the Commission violated the Act in failing to comply with KRS 61.823 and 61.846(1) and that the Mayor also violated the latter provision, but otherwise finds no error on the part of the Commission, the Judge, or the Mayor.

        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.

                                                Jack Conway        

                                                Attorney General

                                                Michelle D. Harrison

                                                Assistant Attorney General

#453

Distributed to:

Lawrence Trageser

Toby Lewis

Don Pay

Bill Karrer

John Dudley Dale, Jr.

Ruth A. Hollan