Opinion
Opinion By: Jack Conway,Attorney General;Michelle D. Harrison,Assistant General
Open Meetings Decision
Robert Schuerman initiated this appeal challenging the inaction of the Tompkinsville -- Monroe County Airport Board upon receipt of the complaint he directed to Chairman Marshall Hodges 1 on January 22, 2015, alleging that violations of the Open Meetings Act were committed in relation to meetings of the Board that were held between June 2013 and December 2014. Mr. Schuerman framed his complaint as follows:
(1) For monthly meetings from June 2013 through December 2014, you violated the requirement that the Board adopt a schedule of regular meetings, and make that schedule available to the public. [KRS 61.820] Nineteen (19) counts?
(2) For the same schedule of meetings excepting December 2014, you violated the requirement that meeting minutes must be available for public inspection no later than the next meeting. [KRS 61.835] Eighteen (18) counts?
(3) You failed to give notice before the "special meeting" of [November 21, 2013]. [KRS 61.823] Verbally you have maintained the meetings are scheduled for the "fourth Thursday." The County Attorney erroneously reported on his eviction notice to Tompkinsville Aviation of a "regular meeting" on said date. The Thanksgiving holiday was the fourth Thursday, understandably the Board would not meet that day. The requirement[] of change of date via public notice still stands. Two (2) counts, as presumably the same would have occurred in 2014. 2
(4) Because you failed to provide a public schedule, all meetings were "special meetings." Seventeen (17) counts because they were not publicized as such. [KRS 61.823(3) and (4)]
(5) Because you held "special meetings," you were required to publish an agenda before the meeting. [KRS 61.823(3)] Nineteen (19) counts.
(6) Because you failed to publish an agenda, your discussions and resolutions from all nineteen meetings are null and void, because you could not possibly comply with the "published agenda" that never existed. [KRS 61.823(3)] All meetings mentioned were illegal meetings. Nineteen (19) counts.
To remedy the alleged violations, Mr. Schuerman proposed that Mr. Hodges resign as Board Member and Chairman immediately and include "an apology for poor stewardship of the resources of the people of Monroe County, and for your part in chasing away a nationally and Kentucky-awarded aviation program from the Monroe County school system." Mr. Schuerman asked that Mr. Hodges' resignation letter, including the apology, be published "in an advertisement at least 1/4 page in the Monroe County Press, [The] Monroe County Citizen, and the Tompkinsville News." Having received no response of any kind, Mr. Schuerman initiated the instant appeal by letter dated February 2, 2015. This office distributed a Notification to Agency of Receipt of Open Meetings Appeal on February 5, 2015, to Judge/Executive Willett, Chairman Hodges, and Monroe County Attorney Wes Stephens. No response has been received on behalf of the Board as of this date.
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. The Board did not choose to respond to Mr. Schuerman's complaint and this inaction constituted a violation of the Open Meetings Act. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[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 Board violated the Open Meetings Act in failing to do so. Id. 97-OMD-43; 11-OMD-114. Given this determination, the remaining questions are whether the Board violated the Open Meetings Act in failing to comply with KRS 61.835 and in failing to either comply with KRS 61.820 or, in the alternative, comply with all of the notice requirements codified at KRS 61.823 prior to each of the meetings in dispute.
Resolution of the instant appeal turns partially on the application of KRS 61.835, pursuant to which minutes of "action taken" at every meeting (as defined at KRS 61.805(1)) of any public agency (as defined at KRS 61.805(2)), "setting forth an accurate record of votes and actions taken at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." In addressing the requirements of KRS 61.835 relative to ad-hoc committees that were serving a strictly advisory function, the Attorney General determined that minutes must be maintained, even if those minutes reflect only that the public agency convened, approved the minutes of the last meeting, and adjourned. See 00-OMD-96; 95-OMD-64. In other words, KRS 61.835 specifies the "minimal requirements pertaining to the keeping of the minutes of a public agency. ? If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting." 95-OMD-64, p. 4. Such minutes are subject to public inspection. Id.; 14-ORD-055. 3 Failure to record minutes and make them publicly available violates KRS 61.835. See 14-OMD-029. The Board has not refuted Mr. Schuerman's claim that no minutes were recorded or available during the specified time period; accordingly, this office finds that it violated KRS 61.835 each time minutes of a meeting were not "promptly recorded" and made available "no later than immediately following" the next meeting of the agency.
The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), provides that "[a]ll 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[.]" Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of a public agency at which either public business is discussed 4 or action is taken. 5 KRS 61.820 provides that all meetings of all public agencies, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public." It further mandates that all public agencies "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 term "meeting" is broadly defined at KRS 61.805(1) as "all gatherings of every kind? regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " Thus, all gatherings of a quorum of the Board at which it discussed public business or took action were meetings of a public agency subject to provisions of the Open Meetings Act, including KRS 61.820 and 61.823.
In 10-OMD-120, this office found that as in 03-OMD-021, the agency whose actions were at issue "'has not substantiated that it has adopted a schedule of regular meetings and made it available to the public," and "thus it failed to demonstrate that [it acted] in compliance with the requirements of KRS 61.820.'" 10-OMD-120, p. 3, quoting 03-OMD-021, p. 4. There was no question as to whether the public agency needed to meet on a regular basis in those cases. However, in 99-OMD-166, this office was asked to determine whether the City of Benton Park Board's failure to establish a schedule of regular meetings constituted a violation of KRS 61.820. Having quoted the language of KRS 61.820, the Attorney General reasoned:
[T]he phrase "or by whatever other means may be required for the conduct of business of that public agency" invests the Board with some latitude in determining whether to meet on a regular or as needed basis. In the latter case, the Board must treat all of its meetings as special meetings and scrupulously comply with the notice requirements set forth at KRS 61.823. This, again, would promote the express purpose for which the Open Meetings Law was enacted, namely, to maximize notice of public meetings, in the same manner as a regular schedule of meetings, and at the same time eliminate the needless expenditure of public resources for unnecessary meetings?
While we continue to ascribe to the view that the Open Meetings Act contemplates that public agencies will establish a regular me[e]ting schedule "by ordinance, order, resolution, [or] bylaw[s]," and that this method of conducting meetings is clearly favored , we conclude that the Park Board's failure to do so does not violate the Open Meetings Law so long as the Board strictly complies with the requirements of KRS 61.823, treating all of its meetings as special meetings .
99-OMD-166, pp. 5-6 (some emphasis added). 6
The Board has not disputed the applicability of KRS 61.820 in response to Mr. Schuerman's complaint or in response to his appeal. Compare 10-OMD-143. Even assuming the Board had asserted that its failure to comply with KRS 61.820 was due to a lack of sufficient business to justify meeting on a regular basis, however, the fact remains that it was required, in the alternative, to " scrupulously comply" with all of the notice requirements for special meetings codified at KRS 61.823 as every meeting is either a regular meeting or a special meeting. The Board has not disputed that it failed to comply with KRS 61.820 by "provid[ing] for a schedule of regular meetings" and making that schedule available to the public nor has any evidence been presented to suggest compliance with KRS 61.823 was attempted.
"The language of the statute directing agency action is exact."
Edmondson v. Alig at 858. KRS 61.823 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 twenty-four (24) hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed...," or sent via electronic mail per KRS 61.823(4)(b). In addition, the Act requires a public agency to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the headquarters of the agency, at least 24 hours before the meeting. "Discussions and action at the meeting shall be limited to items listed on the agenda in the notice. " KRS 61.823(3). 01-OMD-175; 14-OMD-043. A public agency must comply with all of these requirements. See 10-OMD-168 (copy enclosed). In failing to either comply with KRS 61.820, or comply with all notice requirements for special meetings codified at KRS 61.823 prior to each of the meetings in dispute, the Board violated the Open Meetings Act.
Because the role of this office in adjudicating a dispute arising under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2; 11-OMD-162. Either party may appeal this decision 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 Mr. Schuerman directed an identical written complaint to Monroe County Judge/Executive Tommy Willett on January 15, 2015. Accordingly, the relevant analysis would also be identical. However, Chairman Marshall Hodges, the presiding officer, is the individual to whom the complaint should have been directed under KRS 61.846(1) and that complaint is the subject of this appeal.
2 The rescheduled meeting was a special meeting subject to all of the notice requirements codified at KRS 61.823. See 12-OMD-182.
3 This provision has implications relative to both the Open Records Act and the Open Meetings Act. See 06-ORD-145 (failure to produce minutes of Admissions Committee meetings in response to request constituted a violation of KRS 61.835 as well as the Open Records Act); 04-OMD-182 (agency complied with KRS 61.835 in maintaining a record of votes and actions taken at meetings, and because the agency complied with KRS 61.872(1) in affording requester the opportunity to inspect these and other records, the Attorney General found no violation of either the Open Meetings or Open Records Act but declined "to be drawn into a dispute involving the authenticity of records produced in response to an open records request").
4 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
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