13-OMD-213

13-OMD-213

December 26, 2013

In re: Lawrence Trageser/Taylorsville City Commission

Summary:        Although Taylorsville City Commission violated KRS 61.846(1) by failing to issue a timely written response to open meetings complaint, disputed record on appeal precludes conclusive resolution of issues relating to alleged violation of KRS 61.823(3).

Open Meetings Decision

        The question presented in this appeal is whether the Taylorsville City Commission violated the Open Meetings Act by permitting Flood Levee Commissioner Bobby Smith to speak at its October 24, 2013, special meeting without including an agenda item for his remarks in its special meeting notice and without requiring him to sign up to speak per the commission’s rules for public comment. Additionally, we are asked to determine if the commission violated the Act by failing to issue a timely written response to the open meetings complaint alleging these violations. Because it did not respond to the complaint in writing, and within three business days, we find that the commission violated KRS 61.846(1). See 13-OMD-005 and authorities cited therein. Because the Attorney General is not empowered to adjudicate alleged violations of local procedures and rules, we do not find that the commission’s failure to comply with its rules for public comment constitutes a violation of the Open Meetings Act. Accord 95-OMD-99; 12-OMD-154. Because the commission disputes the complainant’s factual narrative, we cannot conclusively determine if the commission violated KRS 61.823(3) by permitting Flood Levee Commissioner Smith to discuss nonagenda topics. If, however, Commissioner Smith’s remarks were not restricted to the posted agenda item, the commission violated KRS 61.823(3) by permitting him to speak at the October 24 special meeting. Accord 01-OMD-175.

        In supplemental correspondence directed to the Attorney General after this appeal was filed, the commission disputed the alleged violations asserting that:

·       a response to the complaint was issued but “for various reasons . . . was not made within the three statutory days;”

·       though not identified as a speaker on the special meeting agenda, Flood Levee Commissioner Smith “attended and requested to speak” on behalf of the floodwall, “an adjoining property owner.”

The commission did not respond to the complainant’s allegations that it violated its policies relating to public comment.

        We will not lengthen this open meetings decision with an analysis of KRS 61.846(1). That statute requires the commission to issue a written response to an open meetings complaint within three business days, and the failure to do so, “for various reasons” or otherwise, constitutes a violation of the Act. The complainant clearly included an allegation “that no response was received [from] any official of the City of Taylorsville,” placing this issue squarely before the commission. The commission’s November 22 response to the November 9 open meetings complaint was untimely and therefore violated KRS 61.846(1).

        We make no finding on the allegation that the commission “violated their rules . . . by allowing a speaker to comment” without signing up to speak on or before “the previous Friday by noon.”  In a recent open meetings decision this office rejected the argument that an agency violated the Act by committing violations of various provisions of the Kentucky Revised Statutes “extraneous to the [Open Meetings] Act.”  12-OMD-154, p. 3. We cited 95-OMD-99 for the proposition that:

The Attorney General has a limited function under the Open Meetings Act which is expressed in KRS 61.846(2). The Attorney General is required to review the complaint and denial and issue a written decision which states whether the public agency violated the Open Meetings Act. Thus, when an appeal is presented to this office under the Open Meetings Act we cannot decide whether other statutes and various local procedures and regulations have been violated. We can only decide if there has been a violation of the provisions contained in KRS 61.805 to KRS 61.850.

Here, as in 95-OMD-99 and 12-OMD-154, we decline jurisdiction of a dispute arising under local rules and confine our review to disputes arising under the Kentucky Open Meetings Act.¹

        The complainant’s allegation that the commission permitted discussion of a nonagenda topic arises under the Act and is properly justiciable. Unfortunately, the record is disputed as to the content of Flood Levee Commissioner Smith’s comments at the October 24 special meeting, precluding conclusive resolution of that issue.

        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.

In construing this provision, the Attorney General has observed:

The public has a right to expect strict compliance with the requirement that discussions and actions at the meeting be limited to items listed on the agenda contained in the notice. Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion of, or action on, agenda items.

01-OMD-175, p. 6; accord 13-OMD-005. If Mr. Smith’s remarks were not restricted to the “Rezoning of 408 and 410 Gerrard Street,” the agenda item for which the special meeting was called,² the commission’s decision to permit him to speak constituted a violation of KRS 61.823(3). If his remarks were restricted to the rezoning of 408 and 410 Gerrard Street, we find no violation of KRS 61.823(3) notwithstanding the requirements of Chapter 100.³  As noted, our analysis is confined to disputes arising under the provisions of the Open Meetings Act. We are not equipped to resolve factual disputes relating to the content of a speaker’s remarks or empowered to adjudicate legal disputes arising under statutes extraneous to the Act.⁴

        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

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#452

Distributed to:

Lawrence Trageser

Don Pay

Stephen A. Biven

John Dudley Dale Jr.