19-OMD-231
December 23, 2019
In re: Michael Murphy/Gallatin County Planning Commission
Summary:
Gallatin County Planning Commission violated Open
Meetings Act by failing to include agenda in notice of special
meeting, failing to post notice in conspicuous location, and failing
to respond to an open meetings complaint.
Open Meetings Decision
The question presented in this appeal is whether the Gallatin County
Planning Commission (“Commission”) violated the Open Meetings Act (“the
Act”) prior to a special meeting scheduled for November 4, 2019, by failing to
post proper notice or issue a meeting agenda as required by KRS 61.823. For the
reasons that follow, this Office finds that the Commission violated KRS 61.823
and, additionally, failed to respond to an open meetings complaint pursuant to
KRS 61.846(1).
On November 7, 2019, Michael Murphy submitted a written complaint to
the administrator and vice chairman of the Commission, alleging that the
Commission had failed to comply with KRS 61.823(3) by including the agenda in
the notice of special meeting, and further failed to post written notice in a
conspicuous place pursuant to KRS 61.823(4)(c). In addition, he stated that the
Commission “may have violated” KRS 61.823(2) because “it’s unknown who
called for this special meeting.” As a remedy for the alleged violations, he
proposed that the Commission void all actions taken at the special meetings and
comply with the Act in the future.Mr. Murphy mailed both copies of his complaint to the postal address
shown on the Commission’s webpage.1 On November 20, 2019, both letters were
returned to Mr. Murphy marked “not deliverable as addressed, unable to
forward.”2 Therefore, on November 21, 2019, he sent both copies of the
complaint by certified mail to Commission attorney Brian Newman. On
November 25, 2019, Sally Haddix signed for the delivery on behalf of Mr.
Newman. Having received no response to his complaint by December 6, 2019,
Mr. Murphy initiated this appeal.
Submission of complaint and failure to respond
KRS 61.846(1) requires a person seeking administrative enforcement of the
Act to “submit a written complaint to the presiding officer of the public agency.”
Since the Commission has confirmed that the address used, Box 144, 200
Washington Street, Warsaw, Kentucky, was the correct address, this Office
concludes that Mr. Murphy submitted his complaint in compliance with KRS
61.846(1) by using this address for Vice Chairman Arthur Hawkins.3
In a response to the appeal on behalf of the Commission, Mr. Newman
stated: “I don’t know if the inclusion of the street address caused some
confusion, but there certainly is no intent to hide any kind of wrongdoing or bad
acts. The Planning and Zoning Board has no way of affecting the mail delivery
in Warsaw.” Evidently, then, the failure of delivery was a postal error, as
opposed to a refusal to accept delivery by the Commission.
Following his attempted transmission of the complaint to the presiding
officer, Mr. Murphy effected actual transmission of the complaint to the
Commission’s counsel on November 25, 2019. Given the failure of mail delivery
on the first attempt, this Office finds that this subsequent receipt by agency
counsel was sufficient to trigger the Commission’s duty to respond. “To hold
otherwise would be tantamount to encouraging our government officers to ‘bury
1 http://gallatinfiscalcourt.com/planning-and-zoning/ (last visited Dec. 13, 2019).
2 These labels were dated November 18, 2019.
3 According to the minutes of the November 4, 2019, meeting, which Mr. Murphy submitted with
his appeal, Vice Chairman Hawkins was the presiding officer at that meeting.their heads in the sand’ to public matters with which they are charged.” Baker v.
Jones, 199 S.W.3d 749, 752 (Ky. App. 2006).
With regard to the duty to respond to an open meetings complaint, KRS
61.846(1) provides:
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.
By failing to respond to the complaint within the three-day period, the
Commission violated the Open Meetings Act. 16-OMD-007.
Failure to comply with KRS 61.823
KRS 61.820 requires a public agency to “provide for a schedule of regular
meetings” and make that schedule available to the public. The Commission’s
webpage, in compliance with this provision, gives the time and location of its
regular meetings and states that they are held on the first Tuesday of each
month.
In this case, the Commission changed its meeting date to Monday,
November 4, 2019. Rescheduling a regular meeting transforms it into a special
meeting subject to the requirements of KRS 61.823. 14-OMD-009. KRS 61.823(3)
provides:
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.
(Emphasis added.) Mr. Murphy included with his appeal a copy of a notice
published in the Gallatin County News, which gives the date, time, and place of
the Commission’s meeting, but no agenda.On appeal, the Commission admitted that the written notice transmitted
to media organizations4 did not include the meeting agenda as required by law.
Therefore, this Office finds that the Commission violated KRS 61.823(3).
Mr. Murphy additionally alleged in his complaint that the Commission
violated KRS 61.823(4)(c), which provides:
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.
Mr. Murphy provided photographs taken of the door, windows, and bulletin
board in the building when he arrived to attend the meeting. No notices were
visible in the photographs. On appeal, the Commission admitted that posting of
the written notice in a conspicuous place at the meeting site was required, but
did not occur. Therefore, this Office concludes that the Commission violated
KRS 61.823(4)(c).
Finally, Mr. Murphy alleged that that the Commission “may have
violated” KRS 61.823(2), which provides: “The presiding officer or a majority of
the members of the public agency may call a special meeting.” His argument on
this point consists solely of his own admission that he does not know whether
the special meeting was called pursuant to proper authority. Based on nothing
more, this Office is unable to conclude that the special meeting was called
without statutory authorization. Thus, this Office finds no basis for a violation of
KRS 61.823(2).
Conclusion
This Office finds that the Commission violated the Open Meetings Act by
failing to respond to an open meetings complaint pursuant to KRS 61.846(1), to
include the meeting agenda in its written notice of special meeting pursuant to
4 KRS 61.823(4)(a) requires written notice to be transmitted to “each media organization which
has filed a written request … to receive notice of special meetings.”KRS 61.823(3), and to post a written notice in a conspicuous location pursuant to
KRS 61.823(4)(c). This Office finds no violation of KRS 61.823(2).
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
should be notified of any action in circuit court, pursuant to KRS 61.846(5), but
should not be named as a party in that action or in any subsequent proceedings.
Daniel Cameron
Attorney General
James M. Herrick
Assistant Attorney General
#469
Distributed to:
Mr. Michael Murphy
Mr. James Hansen
Ernest Brian Newman, Esq.