16-OMD-186

16-OMD-186

August 31, 2016

In re: R. Keith Cullinan/City of Mockingbird Valley

Summary:        City of Mockingbird Valley violated KRS 61.823(3) and (4)(a) and (c) by failing to give proper notice of special meetings conducted on March 1 and May 3, 2016.

Open Meetings Decision

        R. Keith Cullinan appeals the City of Mockingbird Valley’s disposition of his July 22, 2016, open meetings complaint. Mr. Cullinan submitted his written complaint to the city’s mayor and commissioners alleging that “the meetings . . . held on March 1, 2016, called to order at 5:30 p.m., and May 3, 2016, called to order at 4:00 p.m., violated the Open Meetings Law.”  He complained that although he was unable to obtain a copy of the city’s regular meeting schedule, he was advised by a “constituent” that Mayor Elizabeth Davis stated that “City Council meetings start at 6:00 p.m.” in a June 21, 2016, email. For this reason, Mr. Cullinan maintained, each meeting constituted an improperly noticed special meeting. As a means of remedying the alleged violation, Mr. Cullinan proposed that the city “reconsider actions taken in the March and May meetings at a meeting to be called and held in compliance with the Open Meetings law.”

        The city issued a timely written response in which it neither admitted nor denied the alleged violation. Counsel for the city explained to Mr. Cullinan that his proposed remedy “would require action of the commission,” that the Commission’s next meeting was scheduled for August 2, that he would “bring [Mr. Cullinan’s] request to the attention of the commission at that time,” but that he would “not be able to meet with them prior to that time, as [he would be] travelling.”  In closing, counsel questioned why Mr. Cullinan “raise[d] the issue” since neither he “nor anyone else (with the exception of the commissioners, the clerk, and counsel) attempted to attend either of the March and May meetings . . . .”  Shortly after receiving the city’s response, Mr. Cullinan initiated this open meetings appeal.

        In supplemental correspondence directed to this office, the city again failed to acknowledge violation of KRS 61.823(3) and (4)(a) and (c) based on its failure to treat the March 3 and May 1 meetings conducted thirty minutes and two hours, respectively, before the scheduled starting time, as special meetings. The city acknowledged, through counsel, that its regular meetings commence at 6:00 p.m. Counsel stated that, at the August 2 meeting, “the commission reconsidered the actions at the March and May meetings.”  In the final analysis, counsel observed:

the City responded to Mr. Cullinan’s written complaint within three days although its response did not indicate whether the City would grant the requested relief because the nature of the remedy requested required a meeting of the City Commission. The City did not deny the remedy requested. In fact, the Commission considered the remedy requested at its first opportunity and granted the remedy requested.

The absence of an admission or denial of error precludes us from rendering a decision “decid[ing] that the city has complied with its obligations under the [Open Meetings] Act.”¹

        The city’s July 25 response to Mr. Cullinan’s complaint neither admitted nor denied that it committed the violations, as alleged, or acknowledged the necessity of correcting future conduct. Instead, the city moved from a recapitulation of those allegations to the proposed remedies. The city did not agree to implement the remedies. Council advised that he would “bring [Mr. Cullinan’s] request to the attention of the commission” at its next scheduled meeting on August 2. Anticipating that the commission “presumably will ask why [Mr. Cullinan] raise[d] this issue,” counsel requested that he explain his reasons. KRS 61.846(1) establishes the requirements for agency response to an open meetings complaint. The statute provides:

 The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.

The statute is clear. The City was required to notify Mr. Cullinan within three (3) business days whether or not it intended to remedy the alleged violations. It did not. Instead, it attempted to have him explain the alleged violations at the next meeting and waited until this appeal was filed before it indicated that it would remedy the alleged violation. The City’s argument that it could not determine whether or not to remedy the situation until the next meeting is misplaced. In virtually all cases, the proposed remedy in an open meetings appeal “require[s] action” by the public agency against which the allegations are leveled. Thus, the city’s response was deficient. Additionally, Mr. Cullinan had no obligation to state his reasons for filing the complaint. It is sufficient that he submitted a written complaint to the commission’s presiding officer that identified the violations and proposed a remedy, regardless of whether he was present at the meetings or what his reasons were.

        The city commission violated KRS 61.823(3) and (4)(a) and (c) at its March 1 and May 3, 2016, meetings by failing to give the statutorily required notice for special meetings. Those statutes provide:

(3)        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.

(4)(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.

    . . .

    (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.

“When the public agency deviates from its regular meeting schedule and reschedules that regular meeting,” the Attorney General has observed, “the rescheduled meeting becomes a special meeting.”  92-OMD-1473, p. 2. This includes occasions on which the agency’s regular schedule establishes a fixed meeting time but the meeting is convened in advance of that meeting time. Such action, “justif[ies]a holding that the [agency] contravened both the spirit and the letter of the Open Meetings Act by precluding full public participation through the ‘issu[ance of] false or misleading information as to the meeting’s starting time.”  99-OMD-153, p. 6.  “The public has the right to expect a public agency . . . to follow its regular schedule or to call special meetings following the required notice, delivery, and posting provisions pursuant to KRS 61.823.”  92-OMD-1677, p. 3. Inasmuch as “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,”² and “[t]he express purpose of the . . . Act is to maximize notice of public meetings and actions,”³ we find that the Mockingbird Valley City Commission’s “failure to comply with the strict letter of the law in conducting [its] meetings” constituted a violation of KRS 61.823(3) and (4)(a) and (c) and a violation of “the public good.”  Floyd County Bd. of Educ., 955 S.W.2d at 923.

        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.

                                                Andy Beshear        

                                                Attorney General

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#307

Distributed to:

R. Keith Cullinan

Elizabeth Davis

Tom Halbleib