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 Taylorsville City Commission violated the Kentucky Open Meetings Act in failing to provide fair notice of the particular topics to be discussed or acted upon during its January 14, 2014, special meeting on the agenda posted for that meeting per KRS 61.823(3). Insofar as the January 14, 2014, special meeting agenda contained items like "Other" and "General Government," which did not sufficiently describe the item(s) to be discussed or acted upon, the agenda did not fully conform to KRS 61.823(3), which prohibits "the practice of including open ended agenda items like old and new business, or open to counsel and floor . . . ." 01-OMD-175, p. 6; see also 03-OMD-149; 04-OMD-137; 06-OMD-008; 07-OMD-099. To the extent other items were not so vaguely worded as to preclude the public from having sufficient notice of the discussions contemplated, the agenda was not deficient. In sum, the record on appeal partially validates the allegations made by Lawrence Trageser in his January 15, 2014, complaint.
By letter directed to Mayor Don Pay, City Clerk Steven Biven, and the City of Taylorsville Commissioners on January 15, 2014, 1 Mr. Trageser submitted a complaint per KRS 61.846(1), alleging that "the SPECIAL MEETING agenda was NOT adhered to nor were the comments associated with the agenda within the listed perimeters required under a SPECIAL MEETING agenda. " (Original emphasis.) Mr. Trageser enclosed a copy of the agenda for the agency's January 14, 2014, special meeting, identifying multiple agenda items that failed to "meet the guidelines," i.e., comply with KRS 61.823(3) , in his view, including "Comments by Mayor," "Taylorsville Drainage Project," "Audit- Peercy and Gray," "Other" (listed under more than one heading), "General Government," "Elected Officials' Comments," among others. To remedy the alleged violation(s), Mr. Trageser proposed that the Commission "cease and desist violating the Kentucky Open Meetings Act by NOT adhering to the SPECIAL MEETING agenda and NOT clearly listing the topics to be discussed, taken action on and advertised to the public with the specificity required by the SPECIAL MEETING agenda protocol." (Original emphasis.)
In a timely written response, City Clerk Stephen A. Biven responded on behalf of the City Commission, advising that the City acted in compliance with KRS 61.823 regarding special meetings "and the corresponding agenda for such meetings, especially that of January 14, 2014. KRS 61.823(3) requires the notice of a special meeting to set forth the date, the time, the place and the agenda which the notice for the January 14, 2014, [meeting] did, a copy of which is enclosed." According to Mr. Biven, the City also complied with KRS 61.823(3) insofar as it requires that "'discussions and action . . . shall be limited to the items listed on the agenda in the notice [.]'" There is no requirement, he continued, that a notice must contain a detailed listing "of why the meeting was called or what precise action will take place, etc., as you contend." Mr. Trageser initiated this appeal by letter dated February 5, 2014.
Upon receiving notification of Mr. Trageser's appeal from this office, City Attorney John D. Dale, Jr. responded on behalf of the City Commission. "It appears to the City," Mr. Dale observed, "that in order for a public agency to comply with the specific details Mr. Trageser feels a public agency is required to provide on a special meeting agenda, the public agency would need to have a pre-meeting discussion to make those decisions; discussion and decisions for which the special meeting is called." However, the City does not interpret KRS 61.823(3) to require, "in addition to listing the items to be discussed at the special meeting, to also require listing what the discussion will be and what action will or won't be taken, but rather for a special meeting agenda to give fair notice of particular topics to be discussed or acted upon[.]" Having reviewed the subject agenda in light of existing legal authority construing KRS 61.823(3), this office finds that Mr. Trageser's complaint is partially substantiated.
In 01-OMD-175, the Attorney General was first asked to determine if special meeting agenda items that included "discussion of old business, " "discussion of new business, " "open to floor, " and "open to counsel," were adequately specific to satisfy the requirements of KRS 61.823(3). The Attorney General concluded that the language of that provision, coupled with the statement of legislative policy codified at KRS 61.800, 2 and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," mandated "special meeting agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1, citing
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). In order to implement "'the intent of the legislature in enacting the Open Meetings Act . . . to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies, '" the Attorney General noted, the Act establishes specific requirements which a public agency must satisfy before conducting special meetings, including those codified at KRS 61.823(3), pursuant to which a "'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. '" 01-OMD-175, pp. 4-5, citing
E. W. Scripps Company v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990).
Of particular significance, this office further observed:
In construing this provision, the Attorney General has recognized that although "[t]here is no definition of the term 'agenda' and no explanation as to what constitutes a satisfactory agenda" in the Act, "'agenda' is defined in part in Webster's Third New International Dictionary (1966) as 'a list or outline of things to be done, subjects to be discussed, or business to be transacted.'" 97-OMD-43, p. 3. This definition, in our view, contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business, " "new business, " "open to floor, " and "open to council." Further, such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
01-OMD-175, p. 5. Accordingly, this office concluded that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, is inconsistent with the natural and harmonious reading of KRS 61.823(3), as well as the statement of legislative policy codified at KRS 61.800, and the goal of maximizing notice to the public." Id. at 6, 7.
Applying these principles to an Open Meetings Appeal in which an item listed on the agenda for a special meeting described as "Board and Presidential Leadership ad hoc Committee report" was challenged as not being "sufficiently specific to ensure fair notice to the public that a vote on extension of the President's contract would be conducted," in 02-OMD-22 this office held:
While we believe that the [agency] might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the meeting agenda, we are not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as "old business, " and "new business. "
02-OMD-22, p. 7. Critical to our analysis there was the fact that the ad hoc committee, unlike the City Council, had only one charge, and that charge was to "'make recommendations to the [agency] concerning [the president's] contract, [and] it was apparent that action would be taken on the contract upon receipt of the committee's report.'" Id. Nevertheless, the Attorney General urged the agency to '"scrupulously comply with the notice requirements set forth at KRS 61.823," including the requirement of a written agenda aimed at "maximizing notice to the public.'" Id.
More recently, this office determined that the facts presented were more closely akin to those presented in 01-OMD-175 as fair notice of a mayor's resignation "and the resulting need for election of a new mayor could not be imputed to the public from the generic term 'Personnel, ' nor was any indication that expenditure of HB 265 funds generally, or putting a roof on the new water plant specifically, would be discussed evident from the very general term 'Projects.'" 13-OMD-005, p. 5. Both terms, the Attorney General concluded, "while perhaps not equivalents thereof, are more comparable to impermissibly vague descriptions like 'old business' and 'new business. '" Id. Similarly, as recently as October 2013, this office reasoned as follows in holding that special meeting notices of the Spencer County Fiscal Court attached to Mr. Trageser's appeal were deficient:
The 2:00 p.m. September 6 special meeting notice . . . identifies two agenda items: "1) Discuss county business" and "2) Approve county expenditures, purchases, and bills." The 3:30 p.m. September 10, 2013, special meeting notice identifies one agenda item: "1) Approve county expenditures, purchases, bills, and transfers." Clearly, the first item on the September 6 special meeting notice, "discuss county business" constitutes a "vaguely worded description [that] invites discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. " Although a closer question, we also believe that "approve county expenditures, purchases, bills, and transfers" is insufficiently specific, bearing a marked similarity to the agenda items, "projects" and "personnel, " that were deemed insufficiently specific in 13-OMD-005.
13-OMD-173, pp. 5-6. See 07-OMD-099 (holding that vague description to "enter into executive session" violated KRS 61.823(3) as it did not give the public fair notice of matters to be discussed at the special meeting) ; compare 03-OMD-149 (item described as "Policy and Bylaws" presented a "very close question" but was not impermissibly vague) ; 10-OMD-017 (holding that "Minutes - October 7, 2009" was not impermissibly vague) ; 12-OMD-146 ("Pursuant to KRS 61.810(1)(f) [sic] Discussions which might lead to the appointment, discipline, or dismissal of an individual employee," could not be properly equated with impermissibly vague descriptions like "old business" or "new business" ).
The agenda items which prompted Mr. Trageser's January 15, 2014, complaint, in part, closely resemble those presented in 01-OMD-175 and the subsequent line of decisions holding that generic descriptions like "old business, " "new business, " "open to floor, " and "open to council," as well as generic terms like "Personnel" and "Projects," (13-OMD-005), or "discuss county business," and even the somewhat less general "approve county expenditures, purchases, bills, and transfers," (13-OMD-173) are impermissibly vague. Specifically, even viewed in context, "3) Comments by the Mayor" "Other" (appearing more than once under the subheadings of "Public Safety," "Utility," and "Sewer," all of which appear beneath "Department Reports," which is listed under "New Business" ), as well as "General Government" and "Elected Officials' Comments (Mayor & City Commissioners)" fall into this category and were not "sufficiently definite to permit the public to fairly understand the purpose or purposes for which the special meeting [was] to be held." 01-OMD-175, p. 4. Conversely, "Taylorsville Drainage Project, " listed under "Old Business, " and "Audit - Peercy & Gray," listed under "New Business, " were sufficiently definite, as were "1. Schedule," when listed in reference to "ii) Public Safety a. Police," and "Snow Removal," when listed under "Streets," which, in turn, was located under "Department Reports." Likewise, "Alcohol Sales Ordinance" and "Executive Session Guidelines," when listed under the heading of "Legal" are sufficiently descriptive to provide fair notice to the public of the discussion topics. 3
Having determined that items listed on the agenda were impermissibly vague in 01-OMD-175 and the subsequent line of decisions, the Attorney General also recognized:
[T]he 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, or action on, agenda items.
Accordingly, the Attorney General has concluded that vaguely worded agenda items such as "old business" and "new business" (13-OMD-005), or "discuss county business" (13-OMD-173), "invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting, " and that the topics discussed, and the actions taken at the meeting were thus unauthorized. 01-OMD-175, p. 5. Conversely, in 02-OMD-22 this office concluded that based on the meeting agenda "fair notice could be imputed to the public that the [agency] would vote on the President's contract," 02-OMD-22, p. 1, and that the action did not exceed the scope of the challenged agenda item. Again, the facts of this appeal, in significant part, resemble those which culminated in 01-OMD-175, and this office therefore reaches the same conclusion relative to items that were not sufficiently described on the subject agenda. To the extent discussions held and the resulting actions taken during the January 14, 2014, special meeting, if any, were not properly noticed on the agenda, the City Commission also violated KRS 61.823(3) in this regard. See 12-OMD-080.
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.
# 77
Distributed to:
Lawrence TrageserDon PayStephen A. BivenJohn D. Dale, Jr.
Footnotes
Footnotes
1 Pursuant to KRS 61.846(1), a complainant "shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. . . . The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action." Accordingly, Mayor Pay was the only individual to whom the complaint was required to be submitted; likewise, Mayor Pay, or someone acting under his authority, was required to respond on behalf of the City Commission.
2 KRS 61.800 provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
3 In the interest of brevity, the agenda is not set forth in its entirety. Both parties have a copy and Mr. Trageser did not challenge the specificity of items (1), (2), (4), (9), (10), or much of (6).