Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Oldham County Ambulance Taxing District violated the Open Meetings Act as alleged in Bobbi Nelson's April 14, 2014, written complaint addressed and delivered to Dr. Thomas J. Clark, the district's presiding officer. Ms. Nelson's complaint alleged seventeen violations of the Act that occurred in 2011 and 2012. 1 The majority of her allegations focused on discussions of public business and/or actions taken by the district in a nonpublic forum, as evidenced by the occurrence of the actions and the absence of documentation supporting the occurrence of meetings at which they were discussed or acted upon. 2 The remaining allegations focused on improper closed session discussions. 3 As a means of remedying these violations, Ms. Nelson proposed, inter alia , that the board "discuss, at a future meeting, in an open and public session, those matters that were discussed at the improperly called meetings and closed sessions . . . ." We find that the district violated KRS 61.846(1) by failing to respond to Ms. Nelson's complaint and to identify "the specific statute or statutes supporting its actions."
In a response issued on April 29, 2014, the district chair, Dr. Clark, apologized for his failure to respond explaining that he did not "realize that [Ms. Nelson was] making a formal complaint." In a spirit of cooperation, he agreed to review documentation from the pertinent time frame in order to address her allegations but indicated that "this [would] take considerable time" and that he could not "begin the process until [he had] those documents in hand." Dr. Clark advised Ms. Nelson that "further response [would] be forthcoming from the County Attorney, as well."
By letter dated May 5, 2014, Oldham County Attorney John K. Carter asserted that Ms. Nelson's letter did not contain "an allegation of a violation of an [sic] Open Meetings Act" because it "makes statements with no specific allegation." He maintained that the district's failure to respond was not intentional but instead resulted from Ms. Nelson's failure to "state that it [was] a complaint for violation of the Open Meetings Act. " Mr. Carter indicated that "Stan Clark, Oldham County's Chief Financial Officer is out of town until May 15, 2014," and that he "is the only one who may have information regarding the allegations . . . ."
The Open Meetings Act contains no requirement that an open meetings complainant expressly invoke the Open Meetings Act or otherwise identify her complaint as one arising under the Act. Nor does it contain provision for extension of the deadline for agency response to a complaint. For these reasons, we find that the district violated KRS 61.846(1) in the disposition of Ms. Nelson's open meetings complaint.
Although neither has addressed the question in the context of an open meetings appeal, both the courts and this office have recognized that the failure to issue a timely response to an open records request was not excused by the requester's failure to identify the request as a request made under the Open Records Act. In rejecting the agency's argument that the omission of a reference to the Act vitiated an open record's request, the Kentucky Court of Appeals observed:
The duty to properly respond does not place an undue burden upon public servants. The agency may deny the request, or may ask for a more specific request, or may even tell the person asking for the documents that another custodian has the records, but the agency is required to promptly respond to the request in some fashion.
George Sykes v. James Kemper , 2000-CA-000714-MR (Ky. App. 2001). 4
Numerous open records decisions issued by the Attorney General support this view. See, e.g., 12-ORD-114 and authorities cited therein. These decisions are premised on the notion that "a public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2)," to wit, the applicant's signature, the applicant's name printed legibly, and a description of the records to be inspected. 04-ORD-048, p. 4, citing 94-ORD-101. An open records request that satisfies these requirements triggers the agency's duty to respond within three business days regardless of whether it includes a reference to the Open Records Act. KRS 61.880(1).
The same logic extends to open meetings complaints. KRS 61.846(1) requires an open meetings complainant to submit a written complaint to the agency's presiding officer in which she states the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and what the agency should do to remedy the violation. The statute does not require the complainant to expressly invoke the Open Meetings Act. The Oldham County Ambulance Taxing District "cannot demand or require more" in regard to an open meetings complaint than is required by KRS 61.846(1). Id. Notwithstanding the omission of a specific reference to the Open Meetings Act, the district's duty to respond to Ms. Nelson was triggered when she submitted her April 14 written complaint to Dr. Clark, stated the circumstances of multiple alleged violations, and proposed a remedy that included discussion, at a future public meeting, of matters discussed in the unnoticed meetings and improper closed sessions. The district's failure to do so constituted a violation of KRS 61.846(1).
Because the district failed to respond to Ms. Nelson's complaint, or to fully avail itself of the opportunity to respond to her letter of appeal per 40 KAR 1:030 Section 2, 5 the record is devoid of any defense of the claimed violation. Clearly, the district is foreclosed from discussing public business or taking action in a nonpublic forum pursuant to KRS 61.810(1) and (2). 6 Similarly, the district is foreclosed from conducting a closed session without first observing the requirements codified at KRS 61.815(1)(a) through (d), 7 and from discussing topics in closed session that are not expressly authorized by KRS 61.810(1)(a) through (m). In the context of closed session discussion of personnel issues, KRS 61.810(1)(f) authorizes:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret[.]
If the district conducted closed session discussions of agency policies, such as nepotism and outside employment, the hiring of Jerry McGraw as an independent contractor, 8 approaches to the budget shortfall, or any other topic not directly related to the appointment, discipline, or dismissal of an individual employee or member, its actions were impermissible. The absence of any defense to these claimed violations militates against the district's position.
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:
Bobbi NelsonThomas J. Clark, DMDJohn Carter
Footnotes
Footnotes
1 Although Ms. Nelson's complaints were filed two to three years after the alleged violations occurred, her appeal was not time-barred. KRS 61.846(1) does not restrict the time within which an open meetings complaint must be filed, but KRS 61.846(2) requires the complainant to appeal the agency's denial of the complaint, or refusal to provide a denial to a complaint, within sixty days of the complaint or denial. Having received no response to her complaint, Ms. Nelson initiated her appeal within two weeks of submission of that complaint. Accord 00-OMD-109 and 01-OMD-141; compare 96-OMD-11 and 03-OMD-053.
2 For example, in the fifth subpart of her complaint, Ms. Nelson challenged the district's authorization of a "$ 25,000 payout to Stuart Crawford, plus a $ 6,971.40 contribution to Stuart Crawford's SEP account for refusing to accept employment with Baptist Health." Ms. Nelson explained that she had "examined the board meeting minutes and had found no evidence of such board meeting, special meeting, or executive session" at which this matter was discussed or acted upon.
3 For example, in the sixth subpart of her complaint, Ms. Nelson challenged the "executive session conducted on September 12, 2011, at 6:15 PM for 'personnel issues.'" She quoted the meeting minutes which stated that the board "came out of executive session at 7:17 PM and presented two new policies (Nepotism and Outside Employment), the possibility to have Jerry McGraw serve as legal counsel, and Dr. Rochet to meet with employees to discuss budget shortfall and brainstorm ways to improve the fiscal situation." It was her position that these were impermissible topics for an executive session.
4 Although Sykes v. Kemper is an unpublished opinion that, in accordance with the Rules of Civil Procedure (CR 76.28(4)(c)), cannot be cited as authority in any court of this state, it is indicative of the view the courts might adopt in a later published opinion on the issue of the duties of public agencies upon receipt of an open records request that is not clearly identified as such.
5 40 KAR 1:030 Section 2 provides:
Upon receiving a complaint, the Attorney General's Office shall send notice to the public agency that a complaint has been filed and a copy of the complaint. The agency may provide the Attorney General with a written response to the issues raised in the complaint. The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request. The Attorney General shall consider any response received before the decision is prepared; however, the Attorney General shall not agree to withhold action on the complaint beyond the time limit imposed by KRS 61.846(2) and 61.880(2).
6 KRS 61.810(1) and (2) provide:
(1) All 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 . . . [.]
(2) Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.
7 KRS 61.815(1)(a) through(d) provides:
(1) [T]he following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:
(a) Notice shall be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session;
(b) Closed sessions may be held only after a motion is made and carried by a majority vote in open, public session;
(c) No final action may be taken at a closed session; and
(d) No matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.
8 Carter v. Smith, 366 S.W.3d 414, 422 (Ky. 2012).