13-OMD-210
December 16, 2013
In re: Lawrence Trageser/Spencer County Fiscal Court
Summary: Decision adopting 13-OMD-173; Spencer County Fiscal Court violated Open Meetings Act by failing to include agenda items on agendas for special called meetings that ensured fair notice to the public of the matters to be discussed. Written notice of meeting given to members did not comply with KRS 61.823 unless all required information was included.
Open Meetings Decision
The question presented in this appeal is whether the Spencer County Fiscal Court violated the Open Meetings Act prior to a special meeting scheduled for November 6, 2013, by issuing a special meeting agenda that did not conform to KRS 61.823(3) and failing to give notice to members as required by KRS 61.823(4). We find that the agenda was deficient insofar as it failed to give fair notice of the particular topics to be discussed or acted upon at the special called meeting. Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997). Additionally, we find that the notification of the members may have been procedurally deficient under the statute.
On November 12, 2013, Lawrence Trageser submitted a written complaint to the Spencer County Fiscal Court in which he alleged that the special meeting agenda “failed to concentrate on specific topics” and that the written notice of the meeting was not served on the members by hand delivery, mail, or facsimile transmission as required by KRS 61.823(4)(a). He requested as a remedy that all actions at the meeting be voided and the fiscal court follow the dictates of the Open Meetings Act in the future.
On the same day, Spencer County Attorney Ruth A. Hollan responded in writing on behalf of the fiscal court, stating that the items listed in the agenda were not “open ended” but rather were “specific” enough to comply with the Act. With regard to the notice given to the members, she stated:
At the regular meeting on October 7, 2013, on a motion by Esq. Judd and seconded by Esq. Moody, the Spencer County Fiscal Court voted to move the regularly scheduled meeting of November 4, 2013 to November 6, 2013 due to a scheduling conflict of the Spencer County Attorney, therefore creating the Special Meeting. During the October 21, 2013, meeting each magistrate was given a copy of the minutes from the October 7, 2013, meeting which included said motion. Those minutes were approved by the members of the court.
Karen Curtsinger sent a email to every magistrate, the Spencer County Attorney, and the Spencer Magnet giving notice of the meeting. No written request for receipt of email notifications for special meetings exist with the [exception] of the Spencer Magnet. The members of the court have received emails for the past three years regarding special meetings and emergency meetings without complaint. However, Spencer County Judge Executive Bill Karrer is notifying all members of the court of the requirement and any member of the court that does not file a written request for email notification will no longer receive email notification.
Mr. Trageser initiated this appeal on November 26, 2013, and the fiscal court has reaffirmed its original response to his complaint.
KRS 61.823(4) provides, in pertinent part:
(a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency[.] The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. …
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members … that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member[.]
Pursuant to KRS 61.823(3), “[t]he notice shall consist of the date, time, and place of the special meeting and the agenda.” We cannot determine whether the minutes distributed to the magistrates on October 21 contained all of these elements, including the agenda for the special meeting. If they did not, then the notice to members was procedurally deficient inasmuch as KRS 61.823(4)(b) does not authorize the exclusive use of e-mail notification to members who have not filed a written notification of their preference for that method.
With regard to the substance of the agenda itself, we recently ruled in 13-OMD-173 that agenda language such as “Approve county expenditures, purchases, bills, and transfers” was an insufficiently specific description to ensure fair notice to the public of the business to be considered at a special meeting. In the agenda for the November 6, 2013, special meeting, we find the following items listed under “New Business”:
2. Review and approval of the Additional Invoices and Transfers
….
5. Review of Expenditures & Purchases since last Fiscal Court meeting
6. Zoning readings and recommendations
These items are as unspecific as the language we found inadequate in 13-OMD-173. Pursuant to KRS 61.823(3), “[d]iscussions and action at [a special] meeting shall be limited to items listed on the agenda in the notice.” While we realize that this special meeting is taking the place of a regular meeting, the fact that it is a special meeting imposes a higher standard of specificity. We find that this standard was not met at the November 6 meeting in light of 13-OMD-173 and the authorities cited therein; we accordingly attach a copy of that decision and adopt its reasoning as the basis for our decision in the present appeal.
In conclusion, we find that the agenda for the November 6, 2013, special meeting of the Butler County Fiscal Court did not afford specific notice of the matters to be addressed at the meeting. Further, the e-mail notification to members was unauthorized under the terms of KRS 61.823(4), and the delivery of the prior meeting minutes to the members was also deficient notice unless the information contained therein complied with KRS 61.823 in every respect.
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
James M. Herrick
Assistant Attorney General
#455
Distributed to:
Mr. Lawrence Trageser
Hon. Bill Karrer
Ruth A. Hollan, Esq.