Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Local Emergency Planning Commission, a.k.a. the "Spencer County Emergency Planning Committee," 1 violated the Kentucky Open Meetings Act in failing to either follow the regular meeting schedule it made publicly accessible per KRS 61.820 or comply with all notice requirements codified at KRS 61.823 prior to its December 13, 2013, meeting, and in having the Spencer County Sheriff escort Lawrence Trageser from that meeting when he began verbally identifying several violations of the Open Meetings Act and stating his intention to file a complaint after being recognized and permitted to speak. Based upon the following, this office finds that publication of the agency's regular meeting schedule in The Spencer Magnet refutes the allegation that none was adopted in accordance with KRS 61.820; however, the notice incorrectly listed the meeting date as December 12, 2013, rather than December 13, 2013. Notwithstanding this admitted typographical error, the record on appeal is devoid of evidence to suggest that Chairman Jeff Coulter and/or a majority of the members of the Commission intended to call a special meeting or deviate from the regular meeting schedule as required to trigger application of KRS 61.823; there is no indication that the Commission intended to exclude Mr. Trageser or the public generally from the meeting. However, the Commission violated KRS 61.846(1) in failing to issue a timely written response to Mr. Trageser's December 13, 2013, complaint notwithstanding his expressed intention to initiate an Open Meetings Appeal.
By written complaint directed to Chairman Coulter on December 13, 2013, Mr. Trageser alleged that Chairman Coulter/the Commission violated "numerous if NOT all open meeting regulations." (Original emphasis.) First, Mr. Trageser alleged that Chairman Coulter "advertised a regular meeting for . . . Thursday, at 10:00 a.m. December 12, 2013 in the local newspaper, the Spencer Magnet. However, the meeting didn't occur until Friday at 10:00 a.m. on December 13, 2013." Implicitly relying upon KRS 61.823, Mr. Trageser asserted that inasmuch as the Commission does not have a "documented schedule of regular meetings and thus this meeting would be considered a SPECIAL MEETING, " it violated the Act in failing to post a proper notice containing the agenda for the meeting, notify the media and every member of the Commission using a statutorily authorized method of transmission, etc. 2 Mr. Trageser further claimed that Chairman Coulter verbally attacked him "with abusive and hostile language and ordered [him] to get out of the building repeatedly with NO provocation." According to Mr. Trageser, "he was within the law and his rights to attend and speak at the meeting, under the relative circumstances and actions in play at the time" and the Commission violated the Act in "forcibly removing" him from the meeting and the building "without just cause." To remedy the alleged violations, Mr. Trageser sought a "formal apology given before Spencer County Fiscal Court and placed on the record by Chairman Coulter. Second, to cease and desist all illegal actions [and/or] violations of the Open Records Act and the Open Meetings Act. Third, acquire, read and learn the Open Records Act and Open Meetings Act" in order to correctly implement both. By letter dated January 9, 2014, Mr. Trageser initiated this appeal, noting that he did not receive any response from Chairman Coulter to his complaint. 3
Upon receiving notification of Mr. Trageser's appeal, Spencer County Attorney Ruth A. Hollan responded on behalf of the Commission as follows:
The [Commission] met on December 13, 2013 at 10: 00 a.m. Mr. Trageser came into the meeting sometime after it had started and was recognized by the chairman, Jeff Coulter. Mr. Trageser then began to tell the chairman that he felt the [Commission] had committed various violations. At that point Mr. Coulter told Mr. Trageser that unless he had something that pertained to the meeting, he was not allowed to speak. Mr. Trageser continued to speak and spoke over Chairman Coulter. Mr. Coulter then told Mr. Trageser to leave. Mr. Trageser continued to speak even after being told to leave the meeting. Mr. Coulter then told Mr. Trageser that he was disrupting the meeting.
The [Commission] follows [Robert's] Rules of Order when they conduct a meeting. Chairman Coulter followed those rules by telling Mr. Trageser to stop speaking, and when Trageser continued to speak after being told that he was being disruptive, the chairman asked him to leave.
Mr. Trageser did not leave the meeting when asked and continued talking as shown on the video he supplied your office. The video shows Sheriff Stump get up from his chair and walk around the table. Mr. Trageser then [asked] Sheriff Stump if he was escorting him from the meeting. Sheriff Stump simply stated "yes I am." Mr. Trageser was not forcibly thrown out of the meeting.
In addressing Mr. Trageser's claim that he was recognized by the Chairman but was not permitted to speak for the "usual and customary speaking time of 3 minutes, " Ms. Hollan correctly observed that said custom "is allowed and practiced by the Spencer County Fiscal Court. Other individual committees and boards do not have to allow members of the public to speak during their meetings unless they have voted to do so." With regard to his allegation that all meetings of the Commission are special meetings because the Commission does not have a documented schedule of regular meetings, Ms. Hollan correctly observed that Mr. Trageser included the advertisement from The Spencer Magnet announcing the meeting dates for the upcoming year (and the final meeting of 2013). She further explained that Chairman Coulter called the newspaper approximately two weeks prior to the December 13, 2013, meeting and requested to have the notice printed; however, it was not until after the meeting "that it was brought to his attention that the date for the December 13, 2013 meeting was inadvertently listed as December 12, 2013." In closing, Ms. Hollan acknowledged that Chairman Coulter failed to issue a written response upon receipt of Mr. Trageser's December 13, 2013, complaint "as he made it very clear that regardless of their answer, he would be pursuing the issue further with your office." As in 13-OMD-049 (In re: Lawrence Trageser/Spencer County Fiscal Court, rendered on April 3, 2013), this declaration by Mr. Trageser did not relieve the public agency of its duties under the 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. Chairman Coulter admittedly did not choose to respond to Mr. Trageser's December 13, 2013, complaint and this inaction constituted a violation of the Open Meetings Act notwithstanding his expressed intention to initiate an Open Meetings Appeal. When interpreting the parallel requirements of the Open Records Act codified at KRS 61.880(1), the Kentucky Court of Appeals observed that "[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 the Commission violated the Open Meetings Act in failing to do so. Id. 97-OMD-43; 11-OMD-114. In light of this determination, the question becomes whether the Commission also violated the Act in failing to comply with any or all of the notice requirements codified at KRS 61.823 prior to its meeting on December 13, 2013. The short answer is "no."
In 13-OMD-208 (In re: Lawrence Trageser/Spencer County 911 Commission, Spencer County Judge/Executive, and Mayor of the City of Taylorsville, rendered on December 16, 2013), the Commission had not disputed that it failed to comply with KRS 61.820 nor was any evidence presented to suggest that compliance with KRS 61.823 was attempted when the Chairman decided to hold a meeting on October 30, 2013. Noting that the Commission had not disputed the applicability of KRS 61.820, and that compliance with all of the requirements codified at KRS 61.823 was required if the agency did not conduct sufficient business to follow a regular meeting schedule per KRS 61.820, this office concluded that 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 Act. KRS 61.820(2) requires that all public agencies "shall 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 schedule of regular meetings shall be made available to the public." Although the Commission has not provided any ordinance, resolution, or bylaws that would remove any question as to how or when the schedule was formally adopted, the logical inference is that a schedule was adopted "by whatever other means" as evidenced by the public notice of record, which specifies that meetings of the Commission "are scheduled at 10:00 a.m. on Dec. 13 [mistakenly identified as Dec. 12], 2013, July 17, 2014 and Sept. 18, 2014."
The record on appeal contains insufficient evidence to support Mr. Trageser's position that the Commission "was conducting a secret and illegal meeting under the pretense of a regular advertised meeting." As the Attorney General noted at page 4 of 92-OMD-1677, "[t]he public has a right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823." Inasmuch as the December 13, 2013, meeting was a regular meeting, compliance with KRS 61.823 was not required. Although it can be argued that the Commission deviated from its regular meeting schedule when it mistakenly advertised the December 2013 meeting for December 12 instead of December 13, "we find little evidence to support a claim that this was the conscious intent of the [Commission]." 99-OMD-153, p. 5. In the latter decision, the complainant alleged that the Oldham County Board of Education had violated the Act when its meeting, advertised to begin at 6:00 p.m., started at 4:00 p.m. instead. The Board acknowledged that the posted notice should have indicated the previously adopted starting time of 4:00 p.m., in accordance with its regular meeting schedule (adopted in accordance with KRS 61.820), but listed 6:00 p.m. because of "an unintentional error" made on the (voluntary) agenda for its regularly scheduled meeting. Id., p. 2. This office confirmed that "any conscious attempt to deviate from the regular schedule of meetings triggers the requirements of KRS 61.823 relative to notice and posting of a special meeting. " Id., p. 5. Nevertheless, the Attorney General continued, only the presiding officer or a majority of the members of the agency may call a special meeting under KRS 61.823(2). Id. In the absence of evidence to support a claim that the subject meeting was called by the presiding officer, or a majority of the Board members, as a special meeting, this office found that no violation occurred. Id.
Although the reason for Mr. Trageser's frustration or confusion is apparent, like that of the complainant in 99-OMD-153, this office remains of the view that a typographical error "cannot be imputed to the [agency] as an intentional violation of the Open Meetings Act. " Id., p. 6. Now, as before, this office reminds the agency whose error is at issue that great care should be exercised in preparing a public notice. "It is imperative that the [agency] exercise an abundance of caution to ensure that any documents circulated to its members, or the public generally, accurately reflect the date, time, and place of its meetings, and the matters to be discussed." Id. Although the record on appeal does not support a claim that the Commission "intentionally excluded [Mr. Trageser], or the public generally, from its [December 13] meeting by issuing false or misleading information as to the meeting's [date], should the same problem recur in the future we believe such a case could be made." Id. The final question presented is whether the Commission erred in removing Mr. Trageser from its December 13 meeting.
KRS 61.840 speaks to "Conditions for attendance" at public meetings, providing, in relevant part, that "[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. " 4 Disputes arising under this provision generally focus on whether adequate seating and proper meeting room conditions have been provided; however, on several occasions the Attorney General has recognized that KRS 61.840 "vests the public with a virtually unconditional right to attend all meetings of a public agency. " 00-OMD-169, p. 3. This provision has been the subject of several decisions addressing the question of whether the conduct of a member(s) of the public during a public meeting was disruptive enough to interfere with the maintenance of order and justify removal of the citizen(s); those decisions are summarized in 08-OMD-249, a copy of which is attached hereto and incorporated by reference. None of the decisions resulted in a favorable ruling for the public agency. Critical to each was the recognition that, as in this case, resolution of the question presented turned on a subjective assessment, conducted in a factual vacuum, of a recording or transcript of a public meeting. Here, a DVD of the meeting was provided.
Neither KRS 61.840, nor any other provision of the Open Meetings Act, has been interpreted to vest the public with a right to participate, by means of public comment, in a meeting. In 95-OMD-99, the Attorney General made the following distinction:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
Id., p. 2. To advance the public's "concurrent right freely to express any approval or disapproval of any action or course to be taken,"
City of Lexington v. Davis, 310 Ky. 751, 221 S.W.2d 659, 661 (1945), this office has nevertheless encouraged public agencies to adopt procedural rules that "include procedures permitting members of the public to address the public agency. " 95-OMD-99, p. 3; 02-OMD-181. The Commission is not statutorily obligated to follow the practice or custom of permitting members of the public three minutes in which to speak during meetings; however, there is no dispute as to whether Chairman Coulter afforded Mr. Trageser the opportunity to speak during the agency's December 13 meeting or that he interrupted Mr. Trageser soon after he began to verbalize his belief that several violations of the Act had been committed.
As in 08-OMD-249, this office "must confine its review to the exchange that culminated in the [complainant's] removal from the meeting, focusing exclusively on whether his continued attendance threated the maintenance of order." Id., p. 4. Having summarized the facts and holding of 08-OMD-218 (agency violated KRS 61.840 as recording conclusively established that complainant was ejected from the hearing solely for declining to sit rather than remain standing in the back of the room, a condition that was not required to maintain order), in 08-OMD-249, this office engaged in the following instructive analysis:
As noted, the question now before us is a far closer one. Mr. Priddy's conduct was not exemplary. He did not quietly stand at the back of the room, but attempted to respond to the Mayor's statements. However, contrary to the Council's argument, he was not instructed not to interrupt. Nor was he instructed not to speak. In three instances, Mayor Byrn said "Excuse me, I'm talking," and in the third instance directed Larry Alexander [] to ask Mr. Priddy to leave. At this point, the transcript reflects that Mr. Priddy was "escorted to the door. " No attempt was made to instruct him not to speak or to admonish him that he would be ejected if he continued to speak. Under these circumstances, we believe that his conduct was not "so disruptive as to impede public business, " and that less restrictive conditions may have been imposed, or at least attempted, before he was denied "the virtually unconditional right" to remain in attendance at the meeting. To hold otherwise would promote the arbitrary removal of members of the public without justification.
It is clearly established that Mr. Priddy attempted to speak in the course of Mayor Byrn's statement. It is not clearly established that his comments threatened the maintenance of order, thus justifying the Council's decision to remove him. We therefore find that the Council violated KRS 61.840 in conditioning Mr. Priddy's attendance on his silence when he was not "so disruptive as to impede public business. "
Id., pp. 7-8. Application of this reasoning on the facts presented compels the same result here.
Chairman Coulter announced that he did not have any other business for the Commission to consider, saying, "That's all I've got." Following a few more comments, he said, "I don't have anything else." He then asked if anyone in attendance (one individual aside from Mr. Trageser) had anything to discuss or needed anything. Upon being recognized to speak, Mr. Trageser asked Chairman Coulter if the meeting was a regular meeting and Chairman Coulter said "yep." Mr. Trageser then asked Chairman Coulter if he understood that he violated the Open Meetings Act; Chairman Coulter responded, "How do you figure that"? At that point Mr. Trageser stated his opinion that the meeting was a special meeting because the Commission did not have a schedule of regular meetings per KRS 61.820 and proceeded to begin identifying the specific violations that he believed were committed. Chairman Coulter interrupted Mr. Trageser and said, "If you don't have anything that pertains to this meeting, you don't get to talk. We're trying to take care of business here. I'm not here to play your garbage." 5
Mr. Trageser continued, stating that more importantly, the notice for the meeting listed December 12, 2013, rather than December 13, 2013, as the meeting date. Chairman Coulter responded, saying "Well, we've all talked to each other and we're trying to get this meeting done." Mr. Trageser then advised that Chairman Coulter had been made aware of the violations and he would be filing a complaint, at which point Chairman Coulter responded, "Well, you go right ahead; have a nice day. There's the door. Have a nice day. I'm telling you to leave; there's the door. " Mr. Trageser responded that Chairman Coulter was also violating the Act by instructing him to leave. Then, Chairman Coulter stated to Mr. Trageser that he was disrupting the meeting and repeated that he should "have a nice day; there's the door, " gesturing in the direction of the door. Mr. Trageser asked, "There's the door? " and Chairman Coulter said, "Yes, there's the door, " with emphasis. When Sheriff Stump calmly stood up and began to walk toward Mr. Trageser he asked the Sheriff if he was going to escort him out and the Sheriff responded, "Yes, I am." Mr. Trageser said "okay." Chairman Coulter than apologized to the Commission for being "unprofessional." A member of the Commission asked if the meeting was over; there was a motion to adjourn followed by a second and the meeting was then adjourned.
Although Chairman Coulter was clearly irritated, Mr. Trageser was not "forcibly remov[ed]." There was no physical contact between Sheriff Stump and Mr. Trageser visible on the recording. However, the agency's position that Mr. Trageser was disrupting public business also lacks credibility given that all of the agency business had already been concluded. Chairman Coulter first interrupted Mr. Trageser and mutual interruptions followed. Mr. Trageser did not raise his voice or lose his temper; he was not verbally abusive or threatening. Less than a minute elapsed from the point when Chairman Coulter recognized Mr. Trageser to the point when he first advised Mr. Trageser to "Have a nice day" and said, "There's the door. " Although neither party's conduct was physically threatening or the most egregious, and their mutual disdain was readily apparent, in conditioning Mr. Trageser's continued attendance on silence Chairman Coulter/the Commission violated KRS 61.840 as Mr. Trageser was "not so disruptive as to impede public business. " Before denying Mr. Trageser of his "virtually unconditional right" to remain in attendance, Chairman Coulter/the Commission should have attempted to impose less restrictive conditions under the circumstances presented rather than immediately resorting to ejecting him. "To hold otherwise would promote the arbitrary removal of members of the public without justification." 08-OMD-249, p. 7.
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 TrageserJeff CoulterRuth A. Hollan
Footnotes
Footnotes
1 Although not entirely clear from the record, what is now identified as the Local Emergency Planning Commission by Mr. Trageser and the Spencer County Attorney is apparently the agency that was previously identified as the "911 Commission," i.e. , the "Spencer County 911 Commission," in 13-OMD-208.
2 Mr. Trageser also claimed that no minutes were taken during the meeting. The record on appeal contains no evidence regarding this issue nor is the agency required to have minutes of the meeting available for public inspection prior to its next meeting under KRS 61.835. In the absence of any request for a copy of the minutes or any denial of such a request, further discussion is unwarranted.
3 Although Mr. Trageser also submitted a written complaint to Sheriff Donald "Buddy" Stump on December 16, 2013, KRS 61.846(1) provides that a person "shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850." Accordingly, this office considers only the complaint that was properly submitted to Chairman Coulter in his capacity as presiding officer of the Commission.
4 In 2013 the General Assembly amended this provision, which previously stated that "[n]o person shall be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions, which insofar as feasible allow effective public observation of the public meetings. . . ." Said conditions are now expressly required to include "adequate space, seating, and acoustics."
5 The exact phrasing of the last sentence was not entirely audible on the recording.