15-OMD-115

15-OMD-115

July 2, 2015

In re: Robert D. Cron/Butler County Fiscal Court

Summary:        Butler County Fiscal Court did not violate KRS 61.823(3) at its May 28, 2015, special meeting. Record on appeal does not support the claim that the fiscal court discussed matters outside the scope of the agenda item for “2015-2016 budget 1st reading.”

Open Meetings Decision

        Robert D. Cron appeals the Butler County Fiscal Court’s denial of his May 28, 2015, complaint that the fiscal court violated KRS 61.823(3) at its May 26, 2015, meeting by failing to limit discussion and action to the items listed on the agenda in the special meeting notice. The disputed agenda item called for the “2015-2016 budget 1st reading.”¹  Mr. Cron’s objections focus on discussions that occurred after the proposed 2015-2016 budget was voted down. It is his position that subsequent revisions approved by the magistrates in the course of the meeting were illegal because they did not fall within the scope of “2015-2016 budget 1st reading.”

        The fiscal court issued a timely written response in which it denied Mr. Cron’s allegation. On behalf of the fiscal court, Butler County Attorney Richard J. Deye explained:

I understand your concern to be that the court took actions on matters which were outside the agenda. As stated on the agenda, one matter was to have the first reading of a budget. While I am certain we will disagree, all actions taken at the meeting pertained to the budget and ultimately culminated in the passage of the first reading of the budget. Many people gave public comment concerning different provisions of the budget. To the best of my recollection, all comments from all citizens pertained to matters and provisions contained in the budget. I certainly don’t disagree that the first version of the budget did not pass. Upon further discussion and comment, a revised budget was put on the floor for consideration. The revised budget thereafter passed. The matter on the agenda of the meeting was to have a first reading of a budget. All public comments and all actions of the Fiscal Court culminated in the passage of a first reading of the budget. We can view the budget as a budget ordinance much like the passage of any other ordinance. An ordinance is subject to being revised prior to passage at the will of the legislative body. The Fiscal Court took no action that was not contemplated on the agenda.

Based on the analysis found in 01-OMD-175, 02-OMD-22, and, by way of contrast, 05-OMD-138, we find that the Butler County Fiscal Court did not violate KRS 61.823(3) by discussing matters outside the scope of agenda item described.

        On several occasions this office has held agencies to a standard of strict compliance with the requirements found at KRS 61.823(3). That statute requires public agencies to provide written notice of special meetings that includes the date, time, and place of the special meeting and the agenda. It restricts discussions and actions at the special meeting “to items listed on the agenda in the notice.”  Thus, in 01-OMD-175 we observed:

[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. Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion of, or action on, agenda items. We believe that the practice of including open-ended agenda items like old and new business, or open to counsel and 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.

01-OMD-175, p. 6-7. In the same decision, we developed a standard by which we measure the adequacy of an agenda item.  That standard requires “sufficient specificity in the description of the items to be discussed [or acted upon] to ensure fair notice to the public.”  01-OMD-175, p. 5.

        Applying this standard to a dispute concerning the adequacy of an agenda item, in 02-OMD-22 we affirmed a university’s decision to extend its president’s contract under an agenda item for “Board and Presidential Leadership ad hoc Committee Report.”  Acknowledging that we were dealing with a “close question,” at page 6 of that open meetings decision we reasoned:

In 01-OMD-175, [footnote omitted], we held that fair notice to the public could not be imputed from vaguely worded description items such as “old business,” “new business,” “open to floor,” and “open to council,” concluding that such vaguely worded descriptions “invite discussions and action on any topic without the limitations envisioned by the statute in a special meeting.”  [The complainant] notes that in the past, agendas for [university] meetings at which employee contracts were acted upon included specific items such as “Ratification of Employee Contracts.”  [The university] responds that whereas action on employee contracts is a frequent agenda item, action on the President’s contract is a rare agenda item and therefore the two cannot be meaningfully compared. Because the ad hoc committee had only one charge, [the university] avers, and that charge was to “make recommendations to the Board concerning [the President’s] contract,” it was apparent that action would be taken on the contract upon receipt of the committee’s report.

Although we agreed that the university “might have employed more specific language in describing the contemplated action, . . . we [were] not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it [could not] be equated with such vague descriptions as ‘old business’ and ‘new business.’”  02-OMD-22, p. 7.

        Conversely, in 05-OMD-138 we determined that a city council violated KRS 61.823(3) by discussing matters outside the scope of the item listed on the agenda.  That agenda item provided for discussion of “New Time Period for Business Licenses.”  In addition to discussion of this narrow topic, a video recording of the special meeting confirmed discussion of making retroactive “any change in the current business license fee structure.”  Additionally, the recording confirmed discussion of a proposal to create an ad hoc committee to address the retroactivity of changes in the business license fee structure and a separate proposal to distribute a mailing to all residents outlining the duties performed by city officials. We concluded that “the latter topics f[e]ll outside the limited scope of the sole agenda item.”  05-OMD-138, p. 5.

        We find that the facts giving rise to this appeal are more closely analogous to the facts that gave rise to 02-OMD-22 than the facts that gave rise to 05-OMD-138. The discussions and actions taken at the fiscal court’s May 26 special meeting were confined to the 2015-2016 budget, revisions thereto as contemplated by KRS 68.240(6)² and KRS 68.260(4),³ and a first reading of the revised 2015-2016 budget. We agree with the fiscal court in its view that it could not envision every possible scenario that might unfold at the special meeting in order to frame the agenda item with the specificity Mr. Cron demands.⁴  Further, we agree that “[t]he agenda indicated that the fiscal court was going to have a first reading of a budget and that is exactly what took place.”  Clearly, the agenda item was not an open-ended “invitation to discussions and actions on any topic without limitation . . . .”  01-OMD-175. In contrast to 05-ORD-138, no discussion, other than that contemplated by the law,⁵ reflected in the agenda item, and confirmed by the fiscal court’s and Mr. Cron’s descriptions of the discussion, took place. Rather the most closely analogous open meetings decision is 02-OMD-22, affirming the adequacy of the agenda topic under the fair notice standard found in 01-OMD-175. We therefore conclude that the Butler County Fiscal Court did not violate KRS 61.823(3) at its May 26, 2015, special meeting.

        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

#236

Distributed to:

Robert D. Cron

David Fields

Richard J. Deye