Request By:
Donald Story
Paula Key
Charlotte Bernard
Robert L. Chenoweth
Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Summary: KRS 61.823(4)(c) states that "[a]s soon as possible," but at least twenty-four (24) hours before [a] special meeting, " a public agency must "post[] in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency" written notice of the special meeting. Board of Education acknowledged that "in all likelihood there was no copy of the notice and agenda readily visible" at the entrance to the board's office for the twenty-four hour period immediately preceding its December 4, 2014, special meeting. Failure to post notice of the special meeting in a conspicuous place at least twenty-four hours before the meeting constituted a violation of KRS 61.823(4)(c). Because the Board of Education's January 8, 2015, meeting was a regular meeting, the board was not required to post notice of the meeting, and it did not violate KRS 61.823(4)(c) by failing to do so.
KRS 61.815(1)(a) and (d) state that, as a condition for conducting closed sessions, a public agency must give notice "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" and that "[n]o matters may be discussed at the closed session other than those publicly announced prior to convening the closed session. " Clinton County Board of Education acknowledged that the audio recording of the January 8 meeting did not reflect "verbal or oral notice, " in the regular open meeting, of the general nature of the business to be discussed in, the reason for, or the specific provision authorizing the closed session. Board of Education's failure to adhere to these requirements constituted a violation of KRS 61.815(1)(a).
Open Meetings Decision
Donald Story appeals the Clinton County Board of Education's denial of his January 21, 2015, open meetings complaints relating to board meetings that occurred on December 4, 2014, and January 8, 2015. In his first complaint, Mr. Story alleged that the board failed to post written notice of its December 4, 2014, and January 8, 2015, meetings in contravention of KRS 61.823(4)(c). In his second complaint, he alleged that the board failed to adhere to the requirements for going into closed session in contravention of KRS 61.815(1)(a). On appeal, Mr. Story provided the Attorney General with a copy of an audio tape of the January 8 meeting to substantiate the latter allegation. As a means of remedying these violations, he proposed that the board "admit guilt" and declare actions taken at the December 4 and January 8 meetings "null/void."
In a written response issued within three business days, 1 the board denied the allegations in Mr. Story's complaint. The board confirmed timely distribution of written notice of the December 4, 2014, special meeting to board members and media outlets and acknowledged the existence of the KRS 61.823(4)(c) posting requirement. Continuing, the board observed that "it has been the long-standing practice to provide multiple copies of the meeting agenda just inside the "back door" of the meeting room at the board's central office and that was done for each of the two (2) meetings." Additionally, the board noted, Mr. Story "received separate written notice" of the meetings because they related to a matter in which he had an interest. The board disputed the application of KRS 61.823(4)(c) to its January 8 meeting explaining that because that meeting was a regular meeting it was not obligated to comply with special meeting requirements. In the same response, the board denied Mr. Story's allegation that it failed to observe the requirements for conducting a closed session. The board asserted that "[t]he appropriate statutory reference, KRS 61.810(1)(f), 2 was set out in the agenda as well as the statement the closed session was to be for a hearing that might lead to disciplinary action."
In supplemental correspondence directed to this office after Mr. Story initiated his appeal, the board acknowledged that his allegation that it failed to post notice of the December 4 meeting in a conspicuous place "may well be correct." Citing again its practice of placing copies of special meeting notices and agendas on a table at the parking lot entrance to the meeting room, the board stated that "in all likelihood there was no copy of the notice and agenda readily visible to visitors who entered the main parking lot entrance of the board's office for the twenty-four hour period immediately preceding the meeting." Given the passage of time from the date of the meeting to the date on which Mr. Story submitted his complaint, the board could not verify whether there was "a copy of the notice and agenda near the main (front) entrance to the building." The board reiterated that because the January 8 meeting was not a special meeting, 3 it was not obligated to comply with KRS 61.823(4) special meeting notice requirements.
Turning to Mr. Story's allegation that the board failed to observe the requirements for going into closed session at its January 8 meeting, the board transcribed the relevant portion of the audiotape of that meeting:
"Our first - first order of business will be to enter into executive session. Umm. Need a motion for that."
"I'll make that motion."
"I second."
"All in favor . . . ."
Based on this exchange, the board acknowledged, "Mr. Story's allegation appears to have merit." However, the board asserted, Mr. Story received written notice of the meeting and the basis for the closed session. With respect to the public generally, the board observed:
[T]here were only two other audience members for the meeting on January 8, 2015, and . . . prior to the closed session, the board's executive officer, Superintendent Charlotte Bernard, specifically discussed with each of those audience members that the first item on the agenda following the call to order and roll call was a closed session pursuant to KRS 61.810(1)(f) for a student disciplinary hearing, and that they would have to leave the room after the board voted to go into closed session. Both of these members of the audience likewise had copies of the board's agenda which stated, "Enter Into Closed Session Pursuant to KRS 61.810(1)(f) Regarding a Student Disciplinary Matter."
It was the board's position that " everyone present had actual and express notice 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" and that "by calling for a motion to go into closed session, the board fully complied with KRS 61.815(1)(a)." The board questioned the existence of legal authority "which requires verbal or oral notice rather than written notice, or which requires an agency member to include the statute and reasoning within the phrasing of the motion or in the call for a vote to enter closed session, where written notice is provided to every audience member present in the meeting."
Both KRS 61.823(4)(c) and KRS 61.815(1)(a) through (d) are aimed at "maximiz[ing] notice of public meetings and action," 4 and unambiguously require physical posting of special meeting notice in a conspicuous place and the public announcement in the regular open meeting of the statute authorizing, the general business to be discussed in, and the reason for, a closed session. We find that the Clinton County Board of Education failed to comply with the strict letter of the law when it provided "actual and express," instead of posted, notice of its December 4 special meeting. We also find that the board failed to comply with the strict letter of the law when it approved a motion to go into closed session at its January 8 meeting without "publicly announc[ing]" in the "regular open meeting" the statute authorizing, the general nature of the business to be discussed in, and the reason for, the closed session. This omission constituted a violation of the Open Meetings Act.
KRS 61.823(4) establishes requirements for agency notice of special meetings, including the posting requirement found at KRS 61.823(4)(c). 5 That statute provides:
As soon as possible, written notice shall also be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
"The express purpose of the Open Meetings Act, " the Kentucky Supreme Court has declared, "is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (citing
E.W. Scripps Co. v. City of Maysville, 790 S.W.2d 450 (Ky. Ct. App. 1990)). In a recent open meetings decision, this office recognized that although "it is . . . permissible to take additional steps to notify the public of upcoming special meetings, such as announcing the meeting dates at a regular meeting of a public agency, . . . these steps must be taken in addition to, and not in lieu of, the statutory notice requirements." 14-OMD-194 (public agency violated KRS 61.823(4)(c) by failing to post notice of special meetings). The board acknowledged that its practice of placing the notice on a table at the building's entrance did not, in all likelihood, ensure that the notice of the December 4 special meeting was "readily visible to visitors . . . for the twenty-four hours period immediately preceding the meeting," but maintains that Mr. Story suffered no prejudice as a result of its failure to post written notice.
We focus on the board's failure to strictly comply with KRS 61.823(4)(c) and not on any prejudice Mr. Story may or may not have suffered as a consequence. KRS 61.823(4)(c) requires the board to "post" special meeting notices in a "conspicuous place in the building where the special meeting will take place and the building which houses the headquarters of the public agency" at least twenty-four hours before the special meeting. 6 By its own admission, the board failed to comply with these requirements thereby violating KRS 61.823(4)(c). Regardless of whether Mr. Story was prejudiced by the board's omission, its failure to strictly comply with all statutory notice requirements "violate[d] the public good." Floyd County, 955 S.W.2d at 923.
Similarly, we find that the board's failure to announce in the regular open meeting the statute authorizing, the general nature of the business to be discussed in, and the reason for, its January 8 closed session constituted a violation of the Open Meetings Act. KRS 61.815 establishes conditions for conducting authorized closed sessions. It provides:
(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.
The board acknowledges that, "based solely on the quoted oral statements made by the agency members when entertaining the motion and vote, [Mr.] Story's allegation appears to have merit." However, the board maintains that it substantially complied with these requirements by providing Mr. Story with "express written Notice of the basis for the closed session, " orally advising audience members that the first agenda item was a closed session pursuant to KRS 61.810(1)(f), and including an item on the special meeting agenda for a student disciplinary matter that identified the statute authorizing, and general business to be discussed in, the closed session. 7 These "additional steps to notify the public" of the matter to be discussed in closed session, and the statute authorizing the closed session, did not relieve the board of its duty to strictly comply with KRS 61.815(1)(a).
KRS 61.815(1)(a) requires that the notice of closed session be given "in regular open session. " "A public agency complies with the requirements of KRS 61.815(a) and KRS 61.810(1)(f) 'by announcing, in open session, the general nature of the business to be discussed in closed session . . . , the specific reason for the closed session . . . , and which of the exceptions codified at KRS 61.810 is being invoked to authorize the closed session. '" 14-OMD-091. We have held that merely listing the closed session in the agenda is insufficient to meet the requirements of KRS 61.815(1)(a). In 10-OMD-017, this office rejected a public agency's argument that it adequately discharged its duty under KRS 61.815(1)(a) by referencing a meeting agenda that contained a citation to the statute authorizing a closed session. Similarly, in 09-OMD-169, an agency's "properly posted agenda 'specifically note[d] that the Board was planning to meet in closed session to discuss a potential ethics complaint.'" We held that the placement of the notice in the agenda was insufficient to meet the requirements of KRS 61.815(1)(a), as "there is no indication that notice was given in the open meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session. " Id . Placement of the notice of closed session in the agenda does not count as notice "in regular open session" for the purposes of KRS 61.815(1)(a); the notice must be announced in the meeting itself. 8
Compliance with the agenda requirement separately established at KRS 61.823(3) did not relieve the board of its duty to comply with the requirements for conducting a closed session found at KRS 61.815. The board's "agenda and action" did not satisfy the specific legal requirements found at KRS 61.815(1)(a). We therefore find that the Clinton County Board of Education violated the Open Meetings Act in the manner alleged by Mr. Story in his second complaint.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 In his letter of appeal, Mr. Story also complains that the board's response to his open meetings complaint was untimely. Mr. Story submitted his complaints on January 21 and the Board responded on January 26. Excluding January 21 from the three day calculation, pursuant to KRS 446.030(1), and the intervening Saturday and Sunday pursuant to KRS 61.846(1), the board's response was properly issued on the third business day. The fact that the response did not reach Mr. Story until January 28, as the likely result of mail delays, does not alter our conclusion.
2 The board incorrectly identified the applicable exemption as "KRS 61.830(1)(f)."
3 The board described, in detail, the process by which it established its 2015 regular meeting schedule which included regularly scheduled work sessions to be conducted on the second Thursday night of each month at 4:30 p.m. January 8, 2015, was the second Thursday of the month, and the January 8 work session was, therefore, a regular meeting.
4 Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997).
5 Pursuant to KRS 61.823(3), written notice of a special meeting "shall consist of the date, time, and place of the special meeting and the agenda."
6 The board's headquarters and meeting site were, in this case, one and the same.
7 The agenda stated "Enter Into Closed Session Pursuant to KRS 61.810(1)(f) Regarding a Student Disciplinary Matter."
8 Given Floyd County's maxim that "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," 955 S.W.2d at 923, simply placing the notice of closed session in the agenda does not "maximize notice." Members of the public might not receive a copy of the agenda, and agencies would be able to put closed session topics in the agenda without mentioning them in the meeting, as was the case here. Requiring the conditions specified by KRS 61.815(1) to be expressly announced in the open meeting itself is the most reliable way to maximize notice of closed session topics. However, we do not intend to discourage agencies from putting closed session notices in the agenda; the ideal would be to both put closed session notices in the agenda and announce them during the meeting.