Opinion
Opinion By: Andy BeshearAttorney General;Michelle D. HarrisonAssistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Ravenna City Council ("Council") violated the Open Meetings Act in failing to comply with all notice requirements codified at KRS 61.823 prior to holding its rescheduled meeting on November 14, 2018, at 12:15 p.m. By written complaint directed to Mayor and Presiding Officer Estine Tipton, on November 26, 2018, Councilman William C. Van Cleve alleged the Council violated KRS 61.823(2) when three members present for the November 12, 2018, regular meeting, which did not constitute a majority, voted to reschedule that meeting for November 14, 2018, due to lack of a quorum. 1 Implicitly relying upon KRS 61.823(4)(a), Mr. Van Cleve further alleged the Council violated the Act in failing to ensure that every member of the Council received notice of the November 14, 2018, special meeting at least twenty-four (24) hours before the special meeting; the members of the Council present on November 12 "received their notice when they agreed to reschedule the meeting[.]" Finally, Mr. Van Cleve alleged the notice that he received "at approximately 5:00 p.m. on November 13, 2018," was deficient insofar as it was not dated, it did not specify that it was a notice for a special meeting, and it failed to include the agenda. 2 See KRS 61.823(3). To remedy the alleged violations, Mr. Van Cleve proposed that, in the future, when the Council reschedules a regularly scheduled meeting, it should comply with all of the "notice, delivery and posting" requirements of KRS 61.823.
Having received no response to his complaint, Mr. Van Cleve initiated this appeal by letter dated December 2, 2018. This office received Mr. Van Cleve's appeal on December 6, 2018, and issued a Notification to Agency of Receipt of Open Meetings Appeal to Mayor Tipton and City Attorney Cory Erdmann, on December 10, 2018 (via facsimile transmission), advising that any response on behalf of the Council "must be received no later than Tuesday, December 11, 2018." As of today's date, this office has not received any response, nor did anyone request an extension of time in which to issue a response on behalf of the Council. Before addressing the merits of the issues that Mr. Van Cleve raised in his November 26 appeal, this office is first compelled to note that such inaction by the Council violated the Act from a procedural standpoint.
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. . . ." In construing KRS 61.846(1) , this office has consistently recognized that it "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; 10-OMD-171. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings 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 Council violated the Open Meetings Act in failing to issue a written response. Id . See 12-OMD-182 (In re: William C. Van Cleve/Ravenna City Council); 97-OMD-43; 11-OMD-114. Based upon the unrefuted facts presented, this office finds the Council also violated the Act in failing to comply with KRS 61.823(3) and (4). See 10-OMD-168 (Attorney General was unable to rule in favor of the agency, which failed to address the complainant's allegation or provide any evidence to support its claim despite being in a much better position to provide documentary proof).
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 meetings 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. 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 County 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. " Id. at 452.
To promote this goal, the Open Meetings Act establishes precise requirements that a public agency must fulfill 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), (3), and (4) of this section." In filing his complaint/appeal, Mr. Van Cleve relied upon KRS 61.823(2), (3), and (4), pursuant to which:
(2) The presiding officer or a majority of the members of the public agency may call a special meeting.
(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 . . . .
(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.
(Emphasis added.)
"When the public agency deviates from its regular meeting schedule and reschedules that regular meeting, " this office has observed, "the rescheduled meeting becomes a special meeting. " 92-OMD-1473, p. 2; 99-OMD-153; 01-OMD-175; 02-OMD-127; 09-OMD-135. "The public has a 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. 4; 09-OMD-135. In alleging that a violation of KRS 61.823(2) occurred, Mr. Van Cleve relied upon the fact that only three members of the Council attended on November 12, 2018, and three members do not constitute a majority as required under that provision. He included a copy of a November 14, 2018, article from The Estill County Tribune (" Tribune "), in which Staff Writer Cathy Dawes indicated that, "The council agreed to reschedule the official meeting for the month of November to Wednesday at 12:15." However, the November 21, 2018, article from the Tribune , a copy of which Mr. Van Cleve also enclosed, stated that, "Mayor Estine Tipton called the special meeting for Wednesday, November 14[.]" Because KRS 61.823(2) authorizes the presiding officer or a majority of the members of the public agency to call a special meeting, this office has no basis upon which to conclude the Council violated KRS 61.823(2) if the latter statement is accurate. The role of this office in adjudicating a dispute arising under the Open Meetings Act is narrowly defined at KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." See 11-OMD-023; 14-OMD-183. As with appeals arising under the Open Records Act, "this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal." 10-OMD-135, p. 3; 00-OMD-142; 05-OMD-188.
As to whether the Council fully complied with KRS 61.823(3) and (4), "The language of the statute directing agency action is exact." Edmondson v. Alig, 926 S.W.2d 856 at 858. In relevant part, it requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. Members of the agency cannot waive this requirement. 14-OMD-240, p. 8, n. 5 (citing OAG 82-412); 15-OMD-142. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . . " per KRS 61.823(4)(a), or sent via 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" under KRS 61.823(4)(b). Verbal notification is not sufficient. 03-ORD-197; 04-OMD-184. Oral notice may be utilized in addition to, but not in lieu of, the statutorily required methods of communication. 17-OMD-140, p. 3 (citing 04-OMD-184). "The meeting notice required by KRS 61.823(3) must contain the date, time, and place of, as well as the agenda for , a special meeting regardless of whether it is distributed to agency members and the media or posted for public viewing." 13-OMD-095, p. 3 (emphasis added). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building that houses the headquarters of the agency, at least 24 hours before the meeting. KRS 61.823(4)(c). Public agencies must comply with all of these requirements. See 10-OMD-168; 11-OMD-019; 13-OMD-203.
The notice that Mr. Van Cleve received ( see n. 2), is facially deficient insofar as it does not contain the location of the meeting or the agenda. No evidence has been presented to suggest a more specific notice was provided to his fellow Council members or that a more specific notice (if any) was posted to inform the public. In the November 21, 2018, article from the Tribune , Staff Writer Cathy Dawes indicated that Mayor Tipton had advised her "all council members had been notified of the special meeting by letter that Police Chief Ken White hand delivered to their residence." Mr. Van Cleve refuted this assertion, stating that Chief White told him that he was off duty on November 13, 2018, and therefore did not deliver letters to anyone that day. As noted above, Mr. Van Cleve did not receive his notice until approximately 5:00 p.m. on November 13, 2018, or less than 24 hours before the special meeting scheduled for 12:15 p.m. on November 14, 2018. In the absence of any facts or evidence to refute Mr. Van Cleve's account of the relevant facts, or any reason to question the authenticity of the notice that he provided for consideration, the Attorney General concludes the Council failed to comply with KRS 61.823(3) and (4).
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 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.
Footnotes
Footnotes
1 Pursuant to KRS 83A.130(5):
The mayor shall preside at meetings of the council. The council may set by ordinance the manner in which one of its number may be selected to preside at meetings of the council in place of the mayor. The mayor may participate in council proceedings, but shall not have a vote, except that he may cast the deciding vote in case of a tie.
2 Mr. Van Cleve included a copy of the notice that he received. The notice provides:
November Monthly
Council Meeting will be Wednesday,
November [14], 2018 at 12:15 p.m.