Opinion
Opinion By: Jack Conway,Attorney GeneralMichelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Allen D. Mills initiated this appeal challenging the disposition by the Scott County Public Library Board of Trustees (the "Board") of his October 14, 2014 written complaint alleging the following violations of the Open Meetings Act were committed relative to its August 19, 2014 special meeting:
a. There is no documentation that the special meeting was convened/called by the board officer presiding at the time or a quorum of board members.
b. All members of the Board of Trustees were not notified in writing of the date, time, place and agenda for the meeting.
c. The approved and signed minutes of the meeting reflect two agenda items acted upon or discussed that were not on the meeting notice posted in the library building, as required.
(Original emphasis.) To remedy these alleged violations, Mr. Mills proposed that the Board "should declare all actions and motions taken at the 19 August special meeting null and void as a whole or individually, depending upon legality. Further, special meeting notification and meeting procedures should be incorporated into all appropriate library by-laws and policies within 30 days."
In a timely written response, Chairman/President 1 Michael W. Tackett advised Mr. Mills that his concerns had been considered; however, the Board felt that it satisfied all "special meeting requirements for documentation and notification of a special meeting held on August 19, 2014, per the Open Meetings Act. " The special meeting was called at my direction as Vice President and presiding officer, he continued, and a quorum attended. "For the record," Mr. Tackett observed, "all members of the Board of Trustees were contacted by telephone and notified by email of the date, time, place and agenda of the meeting. Also, the posting requirement was met. Accordingly, the Board feels it complied with the applicable provisions of KRS 61.800 to KRS 61.850." Mr. Mills initiated this appeal by letter dated November 3, 2014, noting that the record is unclear as to whether the presiding officer or a quorum of the members of the Board called the special meeting as the minutes of the August 19 special meeting do not reflect who called the meeting. "There is no record of a quorum/ majority of board members meeting to call the special meeting, " he concluded, "and no statutory authority exists for conducting meetings by telephone. " 2 Mr. Mills further emphasized that only two items were listed on the posted agenda but four items were actually discussed as documented in the minutes of the meeting. Finally, Mr. Mills reiterated that, as the attachments to his appeal demonstrate, "at no point did the members of the Scott County Public Library Board of Trustees receive a written notification of the 19 August 2014 [meeting] that complies with KRS 61.823."
Upon receiving notification of Mr. Mills' appeal, Board attorney R. Bruce Lankford responded on behalf of his client. Mr. Lankford initially advised that Mr. Mills was elected President of the Board on June 10, 2014. During its regularly scheduled meeting on August 12, 2014, Mr. Mills tendered his resignation, dated August 12, 2014, following a disagreement with other members of the Board regarding a proposal by the Library Director. The next day Mr. Mills confirmed his resignation via e-mail directed to Mr. Lankford. Upon the advice of counsel, Vice President Michael Tackett called a special meeting for August 19, 2014, for the purpose of electing new officers due to Mr. Mills' resignation as the next regular meeting was three weeks away. Mr. Mills later attempted to withdraw his resignation and maintained that it was ineffective, having been accepted by the Board at a special meeting which, according to him, violated the Act. In addressing Mr. Mills' first allegation - that the August 19 special meeting was not properly called (per KRS 61.823(2)), the Board advised that following his resignation, the Vice President, who acts in the absence of the President, called a special meeting for the purpose of electing new officers because the resignation of Mr. Mills created a vacancy. As a result of Mr. Tackett's election to President, it also became necessary to conduct other elections for positions that became vacant. Mr. Tackett was the presiding officer upon the resignation of Mr. Mills. All of the remaining members of the Board were present, to wit four members, including Mr. Tackett, which is clearly a quorum of the five-member Board. Mr. Lankford enclosed a copy of the minutes to substantiate the Board's position.
With regard to Mr. Mills' second allegation - that all members of the Board were not properly notified of the August 19 special meeting (per KRS 61.823(4)), the Board reiterated that Mr. Tackett contacted all members by telephone and the members all received e-mail notification of the date, time, place and the agenda of the meeting. Also, the "posting requirement" (codified at KRS 61.823(4)(c), which is not in dispute) was met. To clarify, Mr. Lankford advised that Mr. Mills was initially misinformed that no written or e-mail notification was provided, in response to his request for same, as the records custodian was unaware that Library Director Barbara O'Hara had, in fact, notified each member by e-mail of the "time, date, and place of the special meeting" upon request by Mr. Tackett. In response to Mr. Mills' third allegation - that four items were discussed or acted upon during the special meeting in dispute, rather than only two as listed on the posted agenda (per KRS 61.823(3)), Mr. Lankford advised that his resignation clearly necessitated the election of new officers and "to construe this as 'two' agenda items misconstrues the fact that the two combine to make 'one' agenda item." When viewed in light of existing legal authority construing KRS 61.823(2), (3), and (4), the record on appeal partially validates Mr. Mills' complaint.
In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized that under the Open Meetings Act only two kinds of meeting exist. 92-OMD-1840, p. 3. Regular meetings are governed by KRS 61.820 and special meetings are controlled by KRS 61.823. "If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed." Id. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. "Failure to follow all of these provisions constitutes a violation of the Open Meetings Act. " Id.; 02-OMD-11. In applying this provision, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing
E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps , the Kentucky Court of Appeals likewise recognized that "the intent of the legislature in enacting the Open Meetings Act was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies. " Id. at 452. As the foregoing authorities illustrate, "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government' openly arrived at." 99-OMD-146, p. 4 (citation omitted).
To promote this goal, the Open Meetings Act establishes precise requirements for public agencies which must be fulfilled prior to conducting any special meeting. Specifically, KRS 61.823(1) provides that "[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section." In filing his complaint/appeal, Mr. Mills implicitly relied upon KRS 61.823(2), (3), and (4), pursuant to which:
(2)The presiding officer or a majority of the members of the public agency may call a special meeting.
(3)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.
(4)(a)As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. . . .
(b) A public agency may satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail. The written request shall include the electronic mail address or addresses of the agency member or media organization.
(Emphasis added.)
The record on appeal does not validate Mr. Mills' first allegation - that the Board failed to comply with KRS 61.823(2) as evinced by its lack of supporting documentation. The undisputed facts establish that Mr. Tackett contacted Ms. O'Hara by e-mail on August 16, 2014, to advise that, "The Board would like to call a special meeting for this Tuesday for 5:45 - 6 pm at the library, to nominate a new Board member and hold new officer elections. " On appeal Mr. Mills acknowledged that Mr. Tackett was acting in his capacity as presiding officer of the Board at that time, presumably because Article IV of the Scott County Public Library Constitution and By-Laws, at section A.4, Duties of Officers, identifies the sole responsibility of the Vice-Chairman as being to "Assume duties of Chairman in case of illness or absence." Mr. Mills had confirmed his resignation by e-mail directed to Mr. Lankford on August 13, 2014. 3 Regardless of whether that resignation is ultimately deemed effective, which is a question beyond our purview, Mr. Mills did not dispute that his "absence" necessitated Mr. Tackett assuming the duties of President which, in relevant part, reasonably included calling a special meeting of the Board under KRS 61.823(2). This provision does not require any "documentation" for compliance. Further discussion is unwarranted; this office has no basis upon which to find that a violation of KRS 61.823(2) was committed.
The next question is whether the Board fully complied with KRS 61.823(4). "The language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). In relevant part, it requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . . " per KRS 61.823(4)(a) or sent via electronic mail to public agency members and media organizations "that have filed a written request with the public agency indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail" under KRS 61.823(4)(b). Public agencies must comply with all of these requirements. See 11-OMD-019; 13-OMD-203. Verbal notification by telephone or in person is not sufficient. 03-ORD-197; 04-OMD-184. Further, KRS 61.823(4)(b) "does not authorize the exclusive use of e-mail notification to members who have not filed a written notification of their preference for that method." 13-OMD-210, p. 3. "The meeting notice required by KRS 61.823(3) must contain the date, time, and place of, as well as the agenda for , a special meeting regardless of whether it is distributed to agency members and the media or posted for public viewing." 13-OMD-095, p. 3.
The undisputed facts presented here confirm that Ms. O'Hara, acting on behalf of Mr. Tackett, notified the members of the Board via e-mail sent at 1:43 p.m. on August 18, 2014, that a special meeting was planned for 5:45 p.m. "tomorrow night," more than 24 hours in advance. The subject e-mail advised the members of a Fiscal Court Meeting scheduled for August 26 at 7:00 p.m. and the Chamber of Commerce Presentation scheduled for September 8 at 11:45 a.m. However, the notice lacked the statutorily required agenda found on the notice posted in compliance with KRS 61.823(4)(c), a copy of which is part of the record on appeal (content discussed later). 4 The posted notice also properly contained the date and location of the special meeting; however, the notice provided to members under KRS 61.823(4)(b) was also deficient insofar as both of those items were omitted (even if date could logically be inferred). In addition, the record on appeal does not contain any evidence that any of the members have filed a written notification of their preference to receive electronic mail notification in lieu of the other methods authorized under KRS 61.823(4). For all of these reasons, the Board violated the Act in failing to comply with KRS 61.823(4). 5 The final question is whether the Board violated KRS 61.823(3) in discussing items not listed on the agenda for its August 19 special meeting.
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, 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 sets forth specific requirements which a public agency must satisfy before conducting special meetings, including those codified at KRS 61.823(3). 01-OMD-175, pp. 4-5, citing
E. W. Scripps Company v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990).
This office further observed that in construing KRS 61.823(3) 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." 01-OMD-175, p. 5. This definition "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.'" Id. Rather, "such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting. " Id. This office concluded that "the practice of including open-ended agenda items like old and new business, or open to counsel and floor, was 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 on the basis that it was not "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 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, " but was "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 Board here, only had one charge, 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. 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.
The Board in this case identified the items for discussion as "Nominate new board member" and "Hold new officer elections. " Both of these items were sufficiently specific to ensure fair notice to the public and have not been challenged. However, in addition to a motion by Alonzo Allen to nominate Mr. Tackett for President, a motion by Susan Smith to nominate Mr. Allen for Vice President, a motion by Ms. Smith to nominate Dan Miller for Secretary, a confirmation that Ms. Smith will remain the Treasurer, and a discussion entitled, "Candidate Selection," all of which fall within the scope of the listed items, the approved minutes of the August 19 special meeting reflect that Mr. Allen made a motion at the beginning of the meeting to accept Mr. Mills' resignation. Fair notice of this item of discussion could not be fairly imputed from either of those listed on the agenda. In addition, the minutes reference a "Director's Report," during which Ms. O'Hara asked who planned to attend the Chamber Luncheon and who planned to accompany her to a presentation of the "tax rate" on August 26. There is no mention of the "Director's Report" on the subject agenda. By omitting Mr. Mills' resignation and the Director's Report from the August 19 special meeting agenda, yet discussing both during its August 19 special meeting, and voting on the former, the Board violated KRS 61.823(3). See 12-OMD-080 (to limited extent discussion failed to focus on "Approval of the Bardstown/Nelson County Fire Department Chief," it was contrary to KRS 61.823(3) notwithstanding the brevity of the Mayor's general statement regarding his plan to hire a joint chief). "[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. " 01-OMD-175, p. 6.
In summary, the record on appeal supports Mr. Mills' allegations regarding partial noncompliance with KRS 61.823(3) and (4), but does not validate his claim regarding KRS 61.823(2). Either party may appeal this decision may appeal by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 The parties consistently refer to "President" and "Vice-President" rather than "Chairman" and "Vice-Chairman," respectively, which is how those offices are characterized in the By-Laws of the agency. For consistency, this office uses the agency's preferred terminology in this decision except when quoting the By-laws.
2 Although Mr. Mills' assertion is correct, even assuming that Board members discussed whether to hold a special meeting prior to Mr. Tackett, as presiding officer, actually calling a meeting, that did not violate the Act so long as no action was taken and no substantive discussion of public business occurred. See 00-OMD-171 (City Manager contacting Commissioners to confirm they did not want him to place an item on the agenda was not a discussion of "public business"); 13-OMD-086; 13-OMD-142.
3 Upon receipt of Mr. Lankford's appeal response, Mr. Mills noted that the "status of my membership on the board is under current consideration by the Scott County Judge/Executive, Fiscal Court and County Attorney in light of KRS 63.010." Mr. Mills further observed that one potential outcome may be a determination that the Board "acted without authority on the resignation and that authority was in the purview of the Judge/Executive and Fiscal Court and thus was usurped." In OAG 82-222, this office noted that under existing judicial authority the requirement of a resignation being received and recorded by the appointing authority per KRS 63.010 "is not a condition precedent for an effective resignation." Id., p. 2. The underlying premise for this rule "is that the 'right of the incumbent is subordinate to the right of the people to the maintenance of an orderly government.'" (Citation and emphasis omitted.) Further discussion is unwarranted in this context. This office is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4.
4 The agenda for the special meeting read as follows:
Special Called Meeting of the
Scott County Public Library
Board of Trustees
August 19, 2014
5:45 - 6:00 p.m.
** Agenda**
1. Nominate new board member
2. Hold new officer elections At the Scott County Public Library
5 On appeal Mr. Mills noted that by memorandum directed to "Scott County Public Library Board of Trustees" by "Members," and entitled, "Waiver of Written Notice of Special Meetings," the Board seemed to jointly and individually record the intent to violate most, if not all, of the notice requirements of KRS 61.823. To the extent the Board attempted to waive the requirement of receiving written notification of special meetings, indicating that notification by telephone or in person is adequate, this office is compelled to clarify that members of a public agency cannot waive this notice requirement. OAG 82-412.