Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Gallatin County Fiscal Court violated provisions of the Open Meetings Act in regard to the notice and agenda for its special meeting on November 20, 2015. For the reasons that follow, we find no substantive violation of the Act, but find that the Fiscal Court violated KRS 61.846(1) by failing to make a written response to an open meetings complaint.
In a complaint dated November 23, 2015, reportedly delivered to the County Judge/Executive's office and the Gallatin County Attorney's office, Chad Murray claimed that three violations of the Open Meetings Act occurred with respect to the November 20 special meeting:
#1) [Fiscal Court] Did not submit to Newspaper for publication written notice of special meeting taking place of the Gallatin County Fiscal Court at 200 Washington Street on November 20th 2015 at 5 pm[.]
#2) Written notice was not on building where regular meetings of the Gallatin Fiscal Court conducts [its] business at senior citizens building.
#3) Agenda is vague and does not spell out [its] intent. For instance, this meeting agenda simply states "Glencoe County Park-4-H Building"[.] In reality they approved the location of the building to be placed at County park then also approved County attorney to draw up lease concerning this.
Having received no response, Mr. Murray appealed to the Attorney General. This office received the appeal on December 9, 2015.
In a response dated December 15, 2015, Gallatin County Attorney John G. Wright advises as follows:
The regular Gallatin County Fiscal Court meetings occur at the Senior Citizens Building on Third Street in Warsaw. There was a regular fiscal court meeting held on November 12, 2015 at the Senior Citizens Building. During that meeting, the construction of a new Cooperative Extension (4-H) Building at the Gallatin County Park near Glencoe, KY was discussed. The Gallatin County Fairgrounds is on acreage there leased from Gallatin County. A question arose. Should the building be built on county park lands or in the fairgrounds? No decision was made and it was decided to have a special meeting on Friday, November 20, 2015 at 5:00 p.m. at the County Judge's office. An email was sent to the Gallatin County News from Jenni Brown, an employee of the Gallatin Fiscal Court, dated Tuesday, November 17, 2015 at 9:12 a.m. The email was acknowledged by Kelley Warnick, Editor of the paper, by email dated November 17, 2015 at 9:21 a.m. . . . As further proof that the Gallatin County News did in fact receive proper notice, I am attaching the pertinent part of the news story on the Gallatin Fiscal Court meeting of November 12th that reads: "There will be a special meeting at 5 p.m., this Friday, November 20th at the Judge Executive's office about this project." This story ran in the Gallatin County News that was published on Wednesday, November 18, 2015. . . .
. . .. The Judge's office is both the building where the special meeting took place and the headquarters of the Gallatin County Fiscal Court . The Judge's office door was posted. . . . The statute does not require notice to be placed at the Senior Citizens building (the location of the regular meetings) and it was not posted. An additional posting was made, though not required, inside the front door of the Gallatin County Courthouse where other public notices are regularly posted.
Finally, the agenda for the special meeting of November 20th simply stated: "Glencoe County Park--4-H building." The magistrates had enjoyed the opportunity to go and see the locations and they voted, by a majority, to place the Cooperative Extension Service building, also known as the 4-H building, at the location in the park. The magistrates then discussed ownership and leasing options on the land. The cooperative extension service was paying for the construction of the building but the land still belonged to Gallatin County. The magistrates authorized the county attorney to prepare a long term lease like existed with county fair board. Then the meeting adjourned. The only business discussed and voted on was business that related to the item stated in the agenda. . ..
(Emphasis added.) Mr. Wright does not address the fiscal court's failure to respond to Mr. Murray's complaint.
KRS 61.846(1) provides that after receiving an open meetings complaint:
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 .
(Emphasis added.) Since no response to Mr. Murray's complaint was made within that period, we must find that the fiscal court committed a procedural violation of KRS 61.846(1).
As to Mr. Murray's substantive complaint, KRS 61.823(4) provides as follows in the case of special meetings:
(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.
(Emphasis added.) Subsection (4)(c) does not require the notice to be posted in the building where the regular meetings are normally held, but only in the building housing the headquarters of the agency and in the building where the special meeting is to be held.
Mr. Murray states that when he attended the special meeting he did not see the notice because the "main door to Judges [ sic ] office was locked and [he] had to come in the door leading into offices rather than main door. " There is no indication, however, that the main door was locked during normal business hours or that the posting at the door would not have been conspicuous to the public during normal hours. Therefore, based on the limited record, we find no clear violation of the posting requirements of KRS 61.823, assuming that the notice included both the date, time, and place of the meeting and the meeting agenda, as required by subsection (3) of that section.
Regarding notice to the media, Mr. Murray indicates that he "went to Newspaper office" [ sic ] just prior to the special meeting "to see if the Newspaper had received anything from Gallatin Fiscal Court to submit for publication notice of special called meeting" and was told "no they do not have anything." Assuming that this unnamed newspaper was the same one which announced the special meeting in its article, the Gallatin County News , we note that KRS 61.823(4) does not require the notice of the meeting to be "submit[ted] for publication," but only requires that notice be given to any media organization which has requested such notices. Therefore, we find no violation of that provision.
Lastly, we find that the agenda item "Glencoe County Park--4-H building" adequately described the subject matter discussed at the special meeting. KRS 61.823(3) provides that "[d]iscussions and action at [a special] meeting shall be limited to items listed on the agenda in the notice. " In 01-OMD-175, we opined that the word "agenda" "contemplates sufficient specificity in the description of the items to be discussed to ensure fair notice to the public." We further observed:
Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as "old business," "new business, " "open to floor," and "open to council." Such vaguely worded descriptions invite discussions and actions on any topic without the limitations envisioned by the statute in a special meeting.
Id. Thus, we concluded, "the practice of including open-ended agenda items like old and new business, or open to council or 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." Id. ; accord , 13-OMD-005 (holding that agenda items for "projects" and "personnel" were not sufficiently specific to satisfy the requirements of KRS 61.823(3)).
We have never held that agenda items must be as detailed as meeting minutes, so as to anticipate all decisions or actions that may be taken on a given subject. Rather, the items need only identify a subject so as to give fair notice of the topic to be discussed or acted upon. Given the background provided by Mr. Wright, it appears that the item "Glencoe County Park--4-H building" describes the subject matter of the discussion as adequately as "Accessory Dwelling Units" or "Development Code Revisions Land," which we upheld in 14-OMD-216. Thus, we find no substantive violation of the Open Meetings Act.
A party aggrieved by this decision may appeal it 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.