15-OMD-113
June 24, 2015
In re: Cindy Moore/Whitley City Elementary Site Based Council
Summary: Whitley City Elementary Site Based Council violated Open Meetings Act by failing to provide adequate notice of special meeting and by failing to respond to open meetings complaint.
Open Meetings Decision
Cindy Moore challenges the legality of the May 13, 2015, special meeting of the Whitley City Elementary Site Based Council and the council’s failure to respond to her May 13, 2015, open meetings complaint. Ms. Moore alleges that the council did not adhere to the notice requirements in advance of the special meeting. She also alleges that, as of June 1, 2015, the council had not responded to her open meetings complaint in which she alleged this violation. She cites council by-laws establishing notice requirements for special meetings.
Our analysis proceeds under the Kentucky Open Meetings Act.1 Although the by-laws largely mirror the Act, they also deviate from the Act by imposing additional requirements. Because the site based council does not refute Ms. Moore’s allegation that one council member did not receive timely written notice of the May 13 special meetings, we find that the council violated KRS 61.823(4)(a) when it failed to transmit written special meeting notice “to every member of the public agency.” Because the council presents no evidence refuting Ms. Moore’s allegation that the special meeting notice was not posted at least twenty-four hours before the meeting, we must also resolve this issue in her favor.2 Because the council does not refute Ms. Moore’s assertion that she received no written response to her open meetings complaint, we also find that the council violated KRS 61.846(1) when it failed to “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 [to] notify in writing the person making the complaint, within the three day period, of its decision.”
On behalf of the Whitley City Elementary Site Based Council, attorney Jeff Hoover denied Ms. Moore’s allegations in a written response to notification of her appeal issued by this office under authority of 40 KAR 1:030 Section 2. He stated that minutes of the May 13 meeting confirm that “all members of the council were present except the SBDM Secretary, Ms. Judy Ham” and that no “issues, concerns, or questions [were] raised regarding the validity of the meeting.”3 He attached the affidavit of the principal of Whitley City Elementary School and the affidavits of two council members. He did not attach a copy of the special meeting notice itself.
In his affidavit, Principal Foster Jones attested that, in his role as principal of the school:
[i]t is my duty to ensure that all members of SBDM council are notified of any special called meetings. It is also my duty to make sure that members are given at least 24 hour notice of the meeting and the agenda items for discussion at the special meeting . . . .
Responding to Ms. Moore’s allegation about the May 13 meeting, Principal Jones averred:
I posted notice of the special called meeting on the wall in front of the school main office on May 12th. I made sure that all members were notified of the meeting date and time and such notice given at least 24 hours prior to the meeting.
In her affidavit, council member Linda Collins stated that she “attend[ed] the special meeting of the SBDM council on May 13, 2015” and that she “was notified on May 12th about the meeting . . . by Mr. Foster Jones, the principal, via text message,4 around 2:00 p.m. to 3:00 p.m. about the meeting for the next day.” She, too, maintained that “no member complained or raised any objection or concern about the validity of the meeting or whether proper notice had been given to everyone.” Council member Darlene Barton largely echoed Ms. Collins’ statements in her own affidavit. Although she did not indicate how the special meeting notice was transmitted to her or at what time, she attested that she “was given notice on May 12th by Mr. Foster Jones, the principal, about the meeting for the next day.” Continuing, she asserted, “I have always been given at least 24 hour notice of any meeting of the SBDM council” and expressed certainty that she “had at least 24 hour notice of the meeting on May 13th.” The council’s response and attached affidavits are not dispositive of the issues on appeal.
Kentucky’s Open Meetings Act is aimed at “maximizing notice of public meetings and actions.” Floyd Cnty., 995 S.W.2d at 923, citing E.W. Scripps Co. v. City of Louisville, 790 S.W.2d 450, 452 (Ky. App. 1990), for the proposition 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”). The Act contains a series of requirements, found at KRS 61.823(4)(a), (b), and (c), purposed to ensure this goal. Those statutes provide:
(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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(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.
(c) 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.
Our analysis in this appeal turns on the absence of proof that the council strictly adhered to the requirement that written notice be properly transmitted “to every member of the public agency” by means of personal delivery, fax transmission, mail, or email.
Transmission of special meeting notice is governed by KRS 61.823(4)(a) and (b). The council provides limited evidence of compliance with these requirements in relation to all agency members. Mr. Hoover concedes that he was only able to discuss Ms. Moore’s allegations with two of the council’s five members. The council provides no evidence that council member Randall Foster5 received timely written notice of the May 13 special meeting. In her letter of appeal, Ms. Moore acknowledges that Mr. Foster was verbally advised of the meeting but “did not know what was on the agenda until he arrived at the meeting.” The school’s principal offers assurances that he “made sure that all members were notified of the meeting date and time . . . at least 24 hours prior to the meeting” but does not provide a paper copy of the special meeting notice6 or describe the method by which it was transmitted. “The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” Floyd Cnty., 955 S.W.2d at 923. The council’s inability to produce evidence of strict compliance with the requirements of KRS 61.823(4)(a) and (b) compels us to conclude that it violated the Open Meetings Act by providing inadequate notice of its May 13 special meeting.
Additionally, the council presents no proof of strict compliance with KRS 61.823(4)(c), relating to the posting of special meeting in a conspicuous place at least twenty-four hours before the meeting. We also find that the council violated that statute in advance of its May 13 meeting. The Attorney General rejected agency claims of substantial compliance with the statutory posting requirement found at KRS 61.833(4)(c) in 14-OMD-194 and 15-OMD-057 based on the absence of evidence of strict compliance with the requirement. We referenced 04-OMD-184 holding that “[t]he duty to post written notice of special meetings is a separate and independent legal obligation of a public agency.” 04-OMD-184, p. 7. Ms. Moore asserts that “the notice was posted, but not 24 hours prior to the meeting according to the office secretary.” The council does not refute this allegation. Instead, it attaches Mr. Jones’ affidavit in which he states that he “posted notice of the special meeting on the wall in front of the school main office on May 12th,” but in which he does not specify the time at which he posted the notice. Again, the limited evidence presented does not support the council’s claim of compliance with KRS 61.823(4)(c).
Finally, we find that the council violated KRS 61.846(1) when it failed to respond to Ms. Moore’s May 13 open meetings complaint. KRS 61.846(1) requires that, upon receipt of an open meetings appeal, “[t]he public agency shall determine within three days, excepting Saturdays, Sundays, and legal holidays, after 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 day period, of its decision.” In her letter of appeal, Ms. Moore states that, as of June 1, she had received no written response to her open meetings complaint. The council does not challenge her claim. Because the council failed to respond to her complaint until after she submitted an appeal to the Attorney General, its inaction constituted a violation of KRS 61.846(1).
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.
Jack Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#222
Distributed to:
Cindy Moore
Foster Jones
Jeff Hoover
[1] See, e.g., 02-OMD-11, p. 4, (recognizing that “[o]ur function, in reviewing an appeal under the Open Meetings Act, is restricted to a determination of whether the agency violated the provisions of the Act”).
[2] Evidence of timely posting of the special meeting notice might include an affidavit from the individual who posted the notice attesting to the time of posting. In this case, the evidence might also consist of an affidavit from the secretary disputing Ms. Moore’s statement that “[t]he notice was posted but not 24 hours prior to the meeting according to [the] office secretary.”
[3] In Floyd Cnty Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), the Kentucky Supreme Court held that “[t]he mere fact that no objection was made by the public at the time . . . cannot be used as an excuse [for an open meetings violation]. There is no requirement of public objection found in the statute.”
[4] KRS 61.823(4)(b) has, since 2008, permitted emailed notification of special meetings to the recipient agency member, or media organization that has requested notice, if the member or media organization has submitted a written request with the agency expressing a preference to receive emailed notification and included an active email address. The statute does not expressly authorize text notification of special meetings, and it is unclear whether the principal’s text message satisfied the KRS 61.823(4)(b) requirement.
[5] Mr. Foster’s name does not appear in Ms. Moore’s open meetings complaint. It appears for the first time in her letter of appeal.
[6] The Act establishes the required content for special meeting notice at KRS 61.823(3). That statute provides:
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.
Under Records Series L3008 of the Public School District’s Records Retention Schedule, site based council meeting notifications must be retained for one year.