Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Glencoe Board of Adjustment ("Board") violated the Open Meetings Act in failing to comply with all of the notice requirements codified at KRS 61.872(3) prior to its February 20, 2018, special meeting. In a written complaint directed to Teresa Bowen via certified mail on February 26, 2018, Michael Murphy advised that prior to said meeting, he noticed "the posting of the announcement was displayed in its usual place outside of the building, but I failed to see the required agenda for that special meeting. " 1 Without a posted agenda, Mr. Murphy asserted, "the public is denied the right to be informed of possible actions that may [affect] the community as a whole." Accordingly, Mr. Murphy alleged that the Board violated KRS 61.823(3) in failing to post the statutorily required agenda. To remedy the alleged violation, he proposed that the Board "fully complies with all the provision(s) of KRS 61.823 in conducting a special meeting, and invalidate the actions that were taken on February 20, 2018." Having received no response to his written complaint, Mr. Murphy initiated the instant appeal by letter dated March 9, 2018.
Upon receiving notification of Mr. Murphy's appeal from this office, Corey T. Gamm, City Attorney, responded as follows:
The City would concur that a special meeting of the [Board] was held on February 20, 2018. The City would further concur that the [Board] posted notice in a conspicuous and public place more than 24 hours prior to the time at which that meeting was scheduled. This is the same location where notices for all City business are ordinarily posted. Unfortunately, I have been unable to locate a copy of the actual notice that was posted for the February 20, 2018, meeting, so I am unable to set forth any additional facts regarding whether the Notice that was posted contained an agenda for the special meeting.
. . .
Again, the City is not admitting that the notice of the February 20, 2018, special meeting of the [Board] did not contain an agenda as required by KRS 61.823(3), nor is the City asserting that the notice was strictly compliant. The City is, however, taking steps to ensure that in the future, the [Board] strictly complies with all laws and regulations concerning Open Meetings. . .
Mr. Gamm further acknowledged that all City agencies, boards, and departments are subject to requirements of the Open Meetings Act. Consequently, the City "has determined that formal Open Meetings/Open Records training will be conducted for all members of the [Board]."
On appeal, the Board did not provide any explanation for its failure to issue a written response to Mr. Murphy's February 26, 2018, written complaint within three working days of when it was received in accordance with KRS 61.846(1). Before addressing the substantive issue, this office must address the undisputed procedural violation. Pursuant to KRS 61.846(1), 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. . . ." This office has consistently recognized that KRS 61.846(1) "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2. As with KRS 61.880(1), the parallel provision of the Open Records Act, "[t]he language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029. Simply put, KRS 61.846(1) requires a public agency to issue a written response within three business days of receiving a complaint and the Board's inaction violated the Act. Id. 97-OMD-43; 11-OMD-114.
In construing KRS 61.820, and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized that under the Open Meetings Act only two kinds of meeting exist. 92-OMD-1840, p. 3. Regular meetings are governed by KRS 61.820 and special meetings are controlled by KRS 61.823. "If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed." Id. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. "Failure to follow all of these provisions constitutes a violation of the Open Meetings Act. " Id. ; 02-OMD-11; 10-OMD-168. In applying this provision, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions." Floyd Cnty. Bd. of Educ. v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997)(citing E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990)). In Scripps , the Kentucky Court of Appeals likewise recognized that "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. " 750 S.W.2d at 452. As the foregoing authorities illustrate, "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government' openly arrived at." 99-OMD-146, p. 4 (citation omitted); 10-OMD-168; 14-ORD-240.
To promote this goal, the Open Meetings Act establishes precise requirements for public agencies that must be fulfilled prior to conducting any special meeting. Specifically, KRS 61.823(1) provides that "[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2)['presiding officer or a majority of the members of the public agency may call a special meeting' ], (3), and (4) of this section." In filing his complaint/appeal, Mr. Murphy relied upon KRS 61.823(3), pursuant to which, "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. " 2 (Emphasis added.)
The Board was unable to "locate a copy of the actual notice" for its February 20, 2018, special meeting, and therefore cannot establish strict compliance with KRS 61.823(3) "despite the fact it was in a much better position to provide objective, documentary proof in the form of a copy of the written notice sent to the media and the members and posted for the public in a conspicuous place[.]" 10-OMD-168, pp. 6-7. See 08-OMD-009 (". . . failure to include an agenda of the items to be discussed in the written notices of the upcoming special meetings . . . is inconsistent with the principle of 'maximiz[ing] notice of public meetings and actions,' and represents less than strict compliance with the letter of the law"); 02-OMD-11; 03-OMD-197; 05-OMD-138; 13-OMD-203. The Board's "inability to produce evidence of strict compliance with the requirements of KRS 61.823[(3)] compels us to conclude that it violated the Open Meetings Act" in failing to include the agenda in the statutorily required notice of its February 20, 2018, special meeting. 15-OMD-115, p. 5.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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