Request By:
Ms. Judy Ponder
Mr. Kevin Jeffries
John K. Carter, Esq.
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Oldham County Planning Commission and its Study Review Committee ("SRC") violated the Open Meetings Act at various meetings allegedly spanning "about 33 months," up to and including September 2014. We find that that some of the meeting agendas, and the SRC's failure to keep minutes of meetings, failed to comply with the Act.
The Study Review Committee is a standing committee of the Planning Commission, which, according to Oldham County Attorney John K. Carter, "debates planning issues and makes recommendations to the Commission on the adoption, amendment, or revision of plans, regulations and programs." During the meetings in question, the SRC was conducting a mandatory review of the Comprehensive Plan, as required at least every five years under KRS 100.197(2).
On September 23, 2014, Judy Ponder submitted a written complaint to Kevin Jeffries, who chairs both the Planning Commission and the SRC. The complaint, ranging over this 33-month period and consisting of approximately 39 pages with 17 categories of allegations, raised a broad scope of issues, including violations of the Open Meetings Act, the Commission's bylaws, and Robert's Rules of Order, and proposed various remedies. Mr. Jeffries responded on September 29, 2014, not addressing the full panoply of issues raised by Ms. Ponder, but affirming that proper notice of special meetings was given in all cases pursuant to KRS 61.823.
Ms. Ponder appealed to the Attorney General on October 6, 2014. Oldham County Attorney John K. Carter responded to the appeal on October 15, 2014, acknowledging that the agency response to Ms. Ponder's complaint was issued one day late under KRS 61.846(1) and reaffirming that proper notice was given for all special meetings.
KRS 61.846(1) requires a written response to an open meetings complaint within three business days. Since the record reflects, and Mr. Carter acknowledges, that Mr. Jeffries' response was sent on the fourth business day, we find that a procedural violation occurred. We note, however, that this violation may be somewhat mitigated by the length and complexity of Ms. Ponder's complaint.
As to the substantive matters on appeal, we again observe that Ms. Ponder's complaint intermingles allegations under the Open Meetings Act with alleged violations of Robert's Rules of Order and the Commission's bylaws. We address only those matters which implicate the Open Meetings Act.
In her letter of appeal, Ms. Ponder repeatedly disavows any complaint that the notice given of the date, time, and place for special meetings was insufficient. Rather, she claims that the special meetings were not sufficiently "justified," advancing the argument that KRS 61.823(5) allows special meetings only in emergency situations. This is a misreading of KRS 61.823. Subsection (5) merely spells out the circumstances under which a special meeting may be held on an emergency basis without being strictly held to the notice requirements imposed by KRS 61.823. None of the meetings at issue here were emergency meetings; nor does Ms. Ponder contend that the notice requirements were not met. Therefore, we do not find that this portion of her complaint alleged a violation of the Open Meetings Act.
Ms. Ponder's complaint, however, does raise three legitimate issues under the Act. Unfortunately, none of these issues was addressed in the agency response to her complaint, which focused exclusively on the giving of proper notice for special meetings. We address these three issues individually, presuming the truth of Ms. Ponder's allegations in the absence of any denial by the agency.
1. Meeting room conditions on September 4, 2014
Ms. Ponder's complaint alleges that some people at a meeting of the SRC had difficulty hearing certain voices: "After the Chair turned on the microphones to aid two attendees who said they could not otherwise hear, persons not on microphone spoke with their faces pointed to the head bench, making it difficult for those two attendees in the second row to hear. " She also complains that a map and other documents under discussion were not projected on a screen so that the public in attendance could see them.
KRS 61.820(1) provides:
All meetings of all public agencies of this state ? shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.
Similarly, KRS 61.840 provides, in pertinent part:
All agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.
In 99-OMD-196, we found a violation of KRS 61.840 where committee members sat on a stage with their backs to the audience and did nothing to remedy the problem, such as providing microphones or moving the tables, after repeated complaints that people could not hear. In this case, however, the SRC apparently attempted to remedy a complaint of that nature by turning on microphones. After this was done, it is not clear whether the unidentified "persons not on microphone" speaking toward the head bench were committee members or members of the public addressing the committee. Nor is it apparent from the record whether the two members of the audience made any further complaints about being unable to hear these unamplified persons.
Given that the SRC did make a substantial effort to improve audibility in response to the complaint by members of the audience, we distinguish 99-OMD-196 and find no clear violation of the Act under these facts. As for the fact that documents reviewed by the SRC members were not projected on a screen for the benefit of the public, no such requirement exists under the Open Meetings Act. We therefore find no violation arising out of the meeting room conditions on September 4, 2014.
2. Specificity of special meeting agenda items
KRS 61.823(3) provides that "[d]iscussions and action at [a special] meeting shall be limited to items listed on the agenda in the notice. " In 01-OMD-175, we opined that the word "agenda" "contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public." We further observed:
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." Such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
Id. Thus, we concluded, "the practice of including open-ended agenda items like old and new business, or open to council or 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.; accord, 13-OMD-005 (holding that agenda items for "projects" and "personnel" were not sufficiently specific to satisfy the requirements of KRS 61.823(3)).
Ms. Ponder identifies the following agenda items she claims were not sufficiently specific to give fair notice to the public:
"Breezeway Definition(s)" (September 4, 2014, SRC)
"Miscellaneous, " "Other items," "others (time permitting)" (June 27, 2013; March 27, August 28, September 4, September 25, 2014, SRC)
"Review of Accessory Dwelling Unit Discussion" (April 18, 2013, SRC)
"Accessory Dwelling Units" (March 27, 2014, SRC)
"Development Code Revisions Land" (July 22, 2014, SRC)
"Accessory Dwelling Units (June 23 Draft)" (June 24, 2014, SRC)
"Adoption of the Plan Elements for the Oldham County Comprehensive Plan Update," "Adoption of the GIS zoning layer as the Official Zoning Map of Oldham County" (January 28, 2014, Commission)
"Bylaw Amendments" (September 23, 2014, Commission)
It is clear under established precedent that such vague terms as "miscellaneous, " "other items," and "others" are insufficiently specific for special meeting agenda items. We find that these items were deficient insofar as they failed to give the public fair notice of the particular topics to be discussed or acted upon at the special meetings, as required under KRS 61.823(3). Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997).
As for the other items listed by Ms. Ponder, we cannot say that they were insufficiently specific to give fair notice of the matters to be discussed at special meetings. We therefore find a violation only as to the extent that the SRC used the identifiers "Miscellaneous, " "Other," and "Other items" in a special meeting agenda.
3. Failure to prepare meeting minutes
Ms. Ponder's complaint alleges that "[f]rom on or before November 13, 2007 to September 4, 2014, the SRC has not prepared meeting minutes. " Since the agency has not denied or otherwise responded to this allegation, we shall proceed on the assumption that it is true. KRS 61.835 provides in part: "The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded." The failure of the SRC to comply with this provision constitutes a violation of the Open Meetings Act.
Conclusion
In summary, we find that the Study Review Committee's failure to keep minutes of its meetings was a violation of KRS 61.835. Moreover, certain agenda items were insufficiently specific to give fair notice of the matters to be discussed at special meetings. We also find a procedural violation of KRS 61.846(1) in that the agency response to Ms. Ponder's complaint was a day late. Otherwise, we find no violation of the Open Meetings Act.
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.