Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the City of Ravenna violated the Open Meetings Act in not responding to an open meetings complaint, in notifying city council members of a special meeting by telephone only, and in failing to post notice of the special meeting. We find that the City of Ravenna violated the Open Meetings Act in notifying city council members of a special meeting by telephone only, and in failing to post notice of the special meeting at the city's headquarters. We are unable to resolve a factual dispute concerning actual delivery and receipt of a complaint in the context of an open meetings appeal.
William C. Van Cleve submitted a complaint under the Open Meetings Act to Ravenna on June 26, 2017, stating:
You called a Special Meeting June 16, 2017 to do the first reading of the 2017-2018 annual budget. The Special Meeting was not called according to the guidelines set out in KRS 61.823; the council members were notified by telephone. The date, time and the agenda for the Special Meeting was not posted at the city hall 24 hours in advance of the meeting.
Having received no response, Van Cleve initiated this appeal on July 1, 2017.
Ravenna responded to the appeal on July 6, 2017, stating:
The City of Ravenna never received Mr. Van Cleve's initial correspondence dated June 26, 2017. Mayor Estine Tipton was advised by Mr. Van Cleve at the special meeting that he believed the statutory procedures were not followed.
. . . The City of Ravenna acknowledges that there were two technical errors in its notice for the June 16th meeting. These were: 1) personal notification of the special meeting was made to all council members by telephone as opposed to written correspondence; and, 2) the failure of a city employee to post a notice at City Hall at least twenty-four hours in advance of the special meeting. A notice had been prepared, but a new employee who had not been present for any prior special meetings forgot to post it to the door. For these errors, the City of Ravenna apologizes.
KRS 61.846(1) provides that "the public agency shall determine within three (3) days . . . 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." Ravenna claims that it did not receive Van Cleve's complaint. The Attorney General is unable to resolve a factual dispute over the actual delivery and receipt of a complaint in the context of an Open Meetings Appeal. See 00-OMD-142 ("The remaining question relating to the actual delivery of the notice to Commissioner Royalty involves the resolution of a factual dispute which we cannot, on the written record before us, resolve."); see also 14-ORD-099 ("This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request."). Accordingly, the record before us is insufficient to find that Ravenna violated KRS 61.846(1) in not responding to Van Cleve's complaint.
KRS 61.823, which governs special meeting procedures, provides that "written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency . . . 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. " KRS 61.823(4)(a). "The Open Meetings Act does not recognize the validity of oral notification, delivered in person or by telephone. . . . Oral notice may be utilized in addition to, but not in lieu of, the statutorily required methods of communication." 04-OMD-184. As Ravenna admits, in providing notice of a special meeting to city council members only by telephone, Ravenna violated the Open Meetings Act.
KRS 61.823(4)(c) provides that "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. " Ravenna admits that the notice was not posted. Accordingly, in not posting a special meeting notice in the agency's headquarters, Ravenna violated 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.