15-OMD-224

15-OMD-224

December 16, 2015

In re: Donald Story/Clinton County Board of Education

Summary:        Conflicting factual narratives, and the absence of probative evidence supporting either narrative, precludes Office of the Attorney General from conclusively resolving dispute relating to compliance with KRS 61.823(4)(c) requiring posting of notice of special meetings in a conspicuous place. 10-OMD-135 is not, however, the standard by which the office assesses whether the placement of special meeting notice is conspicuous.

Open Meetings Decision

        Donald Story appeals the Clinton County Board of Education’s denial of his October 2, 2015, open meetings complaint in which he alleged that the board violated KRS 61.823(4)(c)¹ by failing to post, in a conspicuous place, special meeting notices for thirteen special meetings conducted between May 2012 and February 2015. Mr. Story raised this question, among others, in an appeal filed in February 2015 involving two special meetings conducted on dates that are not included in this appeal. That appeal culminated in the issuance of 15-OMD-057. In that decision we determined that the board violated KRS 61.823(4)(c) when it acknowledged that its practice of placing the special meeting notice on a table at the locked parking lot entrance to the meeting site did not ensure that the notice was “readily visible . . . for the twenty-four hour period immediately preceding the meeting.”  15-OMD-057, p. 3.

        In the appeal before us, Mr. Story identifies additional meetings, conducted in the past, in which posted special meeting notices might have been similarly noncompliant. He does not dispute the board’s claim that he was not present at any of the thirteen special meetings and that he therefore cannot identify the locations at which the notices were posted. Conversely, because of the passage of time,² the board is unable “to verify the accuracy of the allegations” relating to improper posting. Neither of the parties has proof of the location where special meeting notices were posted for the thirteen special meetings Mr. Story challenges. Moreover, the board asserts for the first time that the posted notice site that we declared inadequate in 15-OMD-057 was accessible from an interior entrance in the board’s offices at all times the board offices were open to the public and therefore met or exceeded the practice approved in 10-OMD-135. In 10-OMD-135 we affirmed agency posting of special meeting notice in an unlit room accessible to the public only during a public meeting. Mr. Story disputes this claim asserting that the posted notice site, determined to be insufficiently conspicuous in 15-OMD-057, is only accessible to the public if the public is “buzzed in” to the board’s offices. Given these broad factual discrepancies, and the nonexistence of proof supporting either claim, we are disinclined to assign error to the board for past failure to post special meeting notices in a conspicuous place.

        Nevertheless, we find unpersuasive the board’s reliance on 10-OMD-135 to support its position. In 10-OMD-135 this office applied general language appearing in 03-OMD-250 to affirm an agency’s practice of posting special meeting notice on the bulletin board of a meeting room that was dark unless a meeting was in progress. Although accompanied by numerous admonitions relative to the agency’s duties under KRS 61.823(4)(c), this office approved posting of special meeting notices in an unlit room notwithstanding the clearly expressed legislative intent that special meeting notices be posted in “a conspicuous place.”  10-OMD-135 drew from the analysis in 03-OMD-250 in which we affirmed the agency practice of posting special meeting notices on the bulletin board of the main offices of the agency’s headquarters to which the public had full access during regular business hours. In 03-OMD-250 the appellant asserted that the special meeting notice must be posted on the agency’s “outside door.”  While we agreed that this was, in fact, the most conspicuous place on which special meeting notice could be posted, we concluded that a bulletin board located in that part of the agency’s headquarters in which public business was conducted fulfilled the legal requirement found at KRS 61.823(4)(c). The Attorney General reasoned:

The term “conspicuous” is variously defined as “obvious” “attracting attention,” “noticeable,” The American Heritage Dictionary 187 (3d ed. 1994) and “easy to see or perceive,” and “attracting attention . . . .” Webster’s New World Dictionary 304 (2d Ed. 1974). A bulletin board located in that area of City Hall set aside for the transaction of public business satisfies these definitions. Accord, 00-OMD-142 (posting of written notice of special meeting on public bulletin board at city hall “complied in all particulars with the requirements found at KRS 61.823 . . . .”).

        Until such time as the General Assembly declares that special meeting notices must be posted on the doors of the buildings in which special meetings will be held and the buildings that house the agencies’ headquarters, reasonable discretion must be said to reside with public agencies in making this determination. A bulletin board that is accessible to the public is “conspicuous,” as that term is commonly interpreted, notwithstanding the fact that more conspicuous places may be available or the fact that it may not be conspicuous to the public for the full twenty-four hours preceding the special meeting.

03-OMD-250 p. 5. Thus, we affirmed agency posting of special meeting notice on a bulletin board in a publicly accessible section of the agency’s main office. To the extent 10-OMD-135 deviates from our standard analysis, and is interpreted to approve the practice described in that decision, we decline to treat it as the standard by which we assess whether the placement of special meeting notice is conspicuous.

        We continue to ascribe to the view that public agencies must be afforded reasonable discretion in determining what constitutes a conspicuous place. A notice placed on a table located at the locked parking lot entrance of a building is not “obvious,” “noticeable,” “easy to see or perceive” or likely to “attract attention.” Our unappealed holding in 15-OMD-057 settles this issue, and 10-OMD-135 is not the standard by which we assess the conspicuousness of the posting site.

        Ultimately, the board cannot verify the locations at which special meeting notices were posted for the thirteen special meetings at issue in this appeal. Nor can Mr. Story. In view of the absence of probative evidence supporting either claim, we are unable to resolve the issue presented in favor of either of the parties. Given the Open Meetings Act’s statutory goal of “maximiz[ing] notice of [agency] meetings and actions,”³ and the general recognition that “statutes enacted for the public benefit must be interpreted most favorably to the public,”⁴ we urge the board to establish a consistent special meeting posting practice that achieves this goal and reflects an interpretation of KRS 61.823(4)(c) that is most favorable to the public.

        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

#443

Distributed to:

Donald Story

Paula Key

Charlotte Bernard

Grant R. Chenoweth