Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Berea City Council ("Council") Audit and Finance Committee ("Committee") violated the Open Meetings Act ("Act"). We find that the January 7, 2019 special meeting of the Committee was not a Council meeting held in violation of the Act. There is insufficient evidence that the Council violated the Act when members attended the special meeting. However, the Council violated KRS 61.823(3) by failing to provide written notice of a special meeting that included an agenda, and violated KRS 61.823(4)(c) by failing to post written notice of the special meeting that included an agenda. This office does not have the authority to review arguments relating to remedies to alleged violations of the Act.
On September 17, 2019, Ethan Connelly ("Appellant") submitted a complaint to the Council arguing that a special meeting of the Committee held January 7, 2019 was in fact a Council meeting, because the Council did not properly constitute the Committee and because there was a quorum of Council members in attendance. Regarding the special meeting, Appellant alleged that the Council failed to provide an agenda and failed to "appropriately advertise" the special meeting. Appellant argued that the Council should void all actions arising from the special meeting.
On September 20, 2019, the Council responded to the complaint, stating the Committee issued a notice of the special meeting on January 2, 2019, but "[w]e acknowledge that...it did not contain an agenda." However, the Council dedicated much of its response to disputing Appellant's proposed remedy, arguing that actions taken by the Committee need not be voided because, "the only 'actions' of the committee had no legal effect until ratified by the entire council on 1/15/19."
On November 5, 2019, Appellant appealed the disposition of his complaint, arguing that the January 7, 2019 special meeting was in fact a Council meeting. Appellant also argued the Council violated KRS 61.810(1) when a quorum of members attended the special meeting. However, minutes in the record show that on February 21, 2017, the Council approved Berea City Municipal Order ("Municipal Order") 01-2017. The Municipal Order created the Committee, but provided no expiration date. On January 15, 2019, the Council approved superseding Municipal Order 01-2019. Appellant argued that the Council also violated KRS 61.823(3) and KRS 61.823(4)(e) by failing to provide the required notices and agendas for the special meeting. As evidence, Appellant provided a copy of the January 2, 2019 Council email stating the date, time, and location of the special meeting, but lacking an agenda. Appellant stated the Council failed to post the emailed notice at the meeting location.
On November 14, 2019, the Council responded to the appeal, denying it violated the Act when a quorum of members attended the Committee meeting. The Council agreed that the January 7, 2019 Committee meeting was a special meeting, and argued that the January 2, 2019 email was notice of the special meeting. However, the Council agreed that the notice lacked an agenda. The Council provided an affidavit from Berea City Clerk Cheryl Chasteen to verify that the notice was "sent by email to city counselors and persons who had requested to be notified of special public meetings[.]" The City Clerk also stated that she posted notice of the special meeting on the bulletin board and television screens at the meeting location, but "[t]hese notices were the same as the email notice[.]"
The Special Committee Meeting was Not a Council Meeting Held in Violation of KRS 61.810(1) . Appellant argues that the Council failed to properly constitute the Committee, and therefore the January 7, 2019 special meeting was a Council meeting held in violation of the Act. The Council argues that the Committee exists as a separate entity and public agency, but does not identify a definition of "public agency" applicable to the body. We find that the Committee is a "public agency" as defined in KRS 61.805(2)(e), pertaining to: "[a]ny body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government[.]" The record establishes that the Council creates its committees by local ordinance, and ratifies those ordinances by vote at Council meetings. Further, evidence in the record establishes that the committees and member appointments do not expire until the Council votes to supersede standing ordinances. As such, the Committee is a "public agency" created by ordinance, per the definition stated at KRS 61.805(2)(e).
The January 7, 2019 special meeting was not a Council meeting held in violation of the Act. The record shows that the Council created the Committee with Municipal Order 01-2017, and there was no expiration date for those appointments. No evidence exists in the record that the Council superseded that ordinance prior to the January 15, 2019 meeting, at which the Council approved Municipal Order 01-2019. Appellant does not allege, and he provides no evidence, that the Committee members participating in the special meeting varied from the appointments stated in Municipal Order 01-2017. Therefore, insufficient evidence exists in the record to support Appellant's argument. Accordingly, we find that the January 7, 2019 Committee meeting was not a Council meeting held in violation of the Act.
There is Insufficient Evidence that the Council Members Violated KRS 61.810(1) While Attending the Special Committee Meeting . There is no dispute that a quorum of Council members attended the special Committee meeting, but the this office has found, "[n]othing in the [Act] categorically prohibits members of a public agency from attending a public meeting of a committee to which they do not belong." 12-OMD-194, p. 3. We further stated that "a quorum of the City Council membership might theoretically attend a [committee] meeting and state their individual opinions...but this alone would not constitute a special meeting of the City Council subject to KRS 61.823." Id. n. 1. We cautioned that, "[w]hile it is possible to imagine a scenario where members might use such attendance as a subterfuge to evade the notice requirements of KRS 61.823, there is no evidence of such intent in this case." Id. ; 13-OMD-208.
Likewise, we find no evidence of such intent exists in the record for this case. Further, the record provides evidence the Council members did not use attendance of the special meeting "as a subterfuge to evade" requirements of the Act. The record establishes that the Council provided advance written notice of the special meeting to individuals who had requested such notice. The meeting minutes in record show that the Council raised the issues discussed at the special meeting in subsequent Council meeting. As such, there is insufficient evidence for a finding that the Council members violated KRS 61.810(1) while attending the January 7, 2019 special meeting.
The Special Committee Meeting Notices Were Insufficient Because they Lacked an Agenda . Having found that the Committee exists as a "public agency" subject to the requirements of the Act, per KRS 61.805(2)(e), we find that the Committee failed to properly adhere to the special meeting notice requirements of KRS 61.823(3) and (4). The record shows that the Council did not provide a schedule of regular meetings for the Committee. On many occasions, the Attorney General has recognized that "[t]here are only two kinds of meetings -- regular meetings and special meetings." 94-OMD-50, p. 4. This office has observed that "[i]f 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." 92-OMD-1840, p. 3. Absent a schedule of regular meetings properly provided for under KRS 61.820, Appellant correctly observes that the January 7, 2019 Committee meeting was a special meeting.
In his complaint and appeal, Appellant argued that the written notice for the special meeting violated the requirements of KRS 61.823(3), and (4)(c), pursuant to which:
(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)(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.) The Kentucky Court of Appeals recognized that "the intent of the legislature in enacting the [Act] was to ensure that the people of the Commonwealth are given advance notice of meetings conducted by public agencies."
E.W. Scripps Co. v. City of Maysville , 750 S.W.2d 450, 452 (Ky. App. 1990); 15-OMD-113, p. 3. Furthering that requirement, the Kentucky Supreme Court recognized that "[t]he express purpose of the [Act] is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd Cty. Bd. of Educ. v. Ratliff , 955 S.W.2d 921, 923 (Ky. 1997), citing E.W. Scripps Co. , 750 S.W.2d at 452. As such, this office has found that the written notice of a special meeting must contain an agenda, whether it is intended for distribution to members and media per subsection (3), or posted for public viewing where the meeting shall take place per subsection (4)(e). 13-OMD-095, p. 3; 14-OMD-194, p. 2 n. 1; 18-OMD-240.
The Council conceded that the emailed special meeting notice lacked an agenda, therefore violating the content requirements of KRS 61.823(3). However, the City Clerk stated that she posted the same email at the location of the special meeting. As such, we find that the Council violated KRS 61.823(4)(c) by posting a special meeting notice that was inadequate due to the lack of an agenda.
This Office Declines to Address Issues Relating to Remedies . On appeal, the parties argued the appropriate remedy for any alleged violations. This office does not have statutory authority to adjudicate remedies or their enforcement. 12-OMD-200. Under KRS 61.846(2), this office determines whether a violation of the Act occurred. The Act does not provide this office with authority to address remedies or lack thereof. Accordingly, we decline to address issues relating to remedies.
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.