Request By:
Jamie D. Smith
P. O. Box 330
Paris, KY 40361Geraldine Summay
Chairperson, Bourbon County Board of Education
P.O. Box 476
Millersburg, KY 40348-0476Arnold W. Carter
Superintendent
3343 Lexington Road
Paris, KY 40361Robert Chenoweth
Chenoweth Law Office
121 Bridge Street
Frankfort, KY 40601
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Bourbon County Board of Education violated the Open Meetings Act at meetings that occurred over a period of time extending from October 2001 to May 2002. For the reasons that follow, we find that the Board violated the Act by failing to comply with KRS 61.846(1), relating to the agency's duty to issue a timely response to an open meetings complaint, and KRS 61.823, relating to the agency's duty to provide proper notice of special meetings.
In a May 22, 2002 letter directed to Board Chairperson Geraldine Summay, Jamie D. Smith complained about the Board's actions at four special meetings and one regular meeting, and proposed that as a means of remedying the violations the Board nullify all actions taken at these meetings. Ms. Smith received no response to her letter prompting her to initiate an open meetings appeal in which she asked that the Attorney General review the Board's actions at these meetings, as well as its ongoing practice of conducting numerous special meetings. Following receipt of this office's notification of appeal, the Board responded to Ms. Smith's letter asserting that her "allegations of violations of the Open Meetings Act are without factual and legal foundation." The dates of these meetings, the nature of the alleged violations, and Board's responses are summarized below:
1. October 24, 2001: Board conducts a 9:00 a.m. work session at the home of Chairperson Summay in Millersburg, Kentucky 1 without proper notice to the media and without posting proper notice of the meeting, including the agenda for the meeting;
Board's response: Acknowledging that a special meeting of the Board was conducted, as described, Ms. Summay states that the meeting was intended to serve as an informational briefing, and no action was taken. She further acknowledged that although the Board "believes" the media was properly notified, it has no proof of compliance. 2 Nevertheless, she concluded, because no action was taken, no action can be nullified.
With reference to Ms. Smith's "contention" that KRS 61.823(4)(b) requires posting of the agenda for a special meeting, in addition to the written notice identifying the date, time, and place of the meeting, Ms. Summay observed:
2. February 28, 2002: Board conducts a 5:30 p.m. special meeting at the Central Office Building at 5:30 p.m. without posting agenda twenty-four hours in advance of the meeting. Although The Bourbon Times published an agenda for the meeting that identified a single topic, namely the election of a new chairperson, the agenda provided at the meeting and the discussions at the meeting itself included an executive session, approval of seasonal positions in the maintenance department, policy revision, the NSBA conference, and a strategic planning timeline.
Board's response: Ms. Summay noted that the allegation "as to this meeting is premised upon the position that a copy of the meeting agenda must be posted [, and] that allegation has been addressed . . . ." She did not respond to the allegation that the Board should have limited its discussion to the items identified in the agenda that was released twenty-four hours before the meeting.
3. February 7, 2002: Special Meeting of the Board is called for 5:30 p.m. at the Central Office Building. Earlier in the day, Ms. Smith states she went to the Central Office to obtain the meeting agenda and was advised that items were still being added. Moreover, although the posted notice for the meeting indicated that there would be a "Meeting Tonight," the notice did not specify the date and was not posted until 9:00 a.m. on the day of the meeting. Having been challenged on these issues, the Board cancelled the meeting.
Board's response: Ms. Summay asserted that because "no meeting was conducted on this date, the allegations and assertions concerning the 'meeting' are without merit and warrant no response."
4. February 10, 2002: Board conducts a special meeting at 3:00 p.m., "less than twenty-four hours of the swearing in of new board members." The new Board members were not given a copy of the agenda until they arrived at the meeting, and the agenda was not otherwise available at least twenty-four hours before the meeting. Board member Lonnie Conley asks the Superintendent why, on the night before the meeting, he was advised that the only item on the agenda was "expulsion," and matters discussed at the meeting extended to the appointment of Orin Simmerman and John Beardsley to the Evaluation Appeals Committee.
Board's response: Ms. Summay maintained that the Board had only three members twenty-four hours before the meeting, and these members "were provided the written notice called for in KRS 61.823(4)(a)." She further maintained that the Board was not required, nor was it feasible to provide notice to the two individuals who had not yet become members, and therefore no violation occurred. She did not address Ms. Smith's allegation that discussions at the meeting went beyond the item identified in the agenda.
5. May 16, 2002: Board conducts a regular meeting at 5:30 p.m. at which actions taken at the May 10, 2002 meeting were ratified. Ms. Smith alleges that Ms. Summay stated, "This is a business meeting, not a public meeting. " 3
Board's response: Ms. Summay again maintained that no violation of the Open Meetings Act was alleged. Ratification of prior actions is proper where, as here, allegations of a violation of the Open Meetings Act had been made concerning the meeting at which those actions were taken.
In the cover letter directed to this office that accompanied Ms. Summay's response to Ms. Smith's letter, Board Attorney Robert L. Chenoweth explained the Board's failure to respond to that letter within three business days. He indicated that the letter to Ms. Summay was denominated a "grievance," and that the Board has a written policy for "citizen suggestions and complaints." The Board, Mr. Chenoweth advised, "believed [Ms. Smith was] exercising [her] rights under this policy." He noted that Ms. Smith had nevertheless initiated an appeal pursuant to KRS 61.846 "as if [her] letter [] had been sent to Ms. Summay under the auspices of that provision of the Open Meetings Act. " In addition, Mr. Chenoweth reiterated that no statute expressly requires public agencies to include a meeting agenda in the notice that is posted pursuant to KRS 61.823(4)(b), that this is not the common practice among public agencies governed by the Open Meetings Act, and that no court decision or Attorney General's open meetings decision "has been found where this issue has been addressed and such a conclusion as a matter of law reached." In closing, he reminded this office of its limited role in adjudicating open meetings disputes, concluding that no authority exists for determining the number of special meetings a public agency can conduct. It was his position that it would be inappropriate to establish "anything approaching a legal benchmark . . . as to the 'over-usage' of special meetings." While we fully agree with the latter statement, we cannot agree with the Board's analysis of its obligations under KRS 61.846(1) or 61.823.
It is our opinion that the Board's failure to respond to Ms. Smith's May 22 letter in writing, and within three business days, constituted a violation of KRS 61.846(1). That statute provides, in part:
The person [seeking enforcement of KRS 61.805 to 61.850] shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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. An agency's response denying, in whole or in part, the complainant's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
The Board acknowledges receipt of Ms. Smith's letter, but maintains that it treated the letter as a complaint under its written policies governing same rather than as a complaint under KRS 61.846(1). Aside from the fact that Ms. Smith styled her letter a "grievance" rather than a complaint, we find that it otherwise bore every indicia of an open meetings complaint. The letter was directed to Ms. Summay as presiding officer of the Board, stated the circumstances that constituted the alleged violations of the Open Meetings Act, and contained a proposed remedy for the alleged violations. The statute does not require an open meetings complainant to specifically identify his or her complaint as an "open meetings complaint." Because Ms. Smith's letter mirrored the requirements of KRS 61.846(1), and referenced the Open Meetings Act throughout, we find that the Board erroneously proceeded under its written policy and violated KRS 61.846(1) in failing to issue a timely response to Ms. Smith's open meetings complaint.
Turning to the substantive issues on appeal, we find no support for the Board's position that it is not required to include a final written agenda in the special meeting notice that is distributed to its members, that is distributed to media organizations that have filed a written request, and that is posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building that houses the headquarters of the agency. Rather, we believe that the language of the statute itself, as well as numerous decisions of this office, support the opposite view. Because the Board does not dispute Ms. Smith's claim that it failed to restrict its discussions at special meetings to items listed on the agenda, we further find its position relative to this conduct legally unsupportable. For these reasons, we conclude that the Board violated KRS 61.823 at its October 24, 2001 meeting by failing to post an agenda, along with written notice, of that meeting at least twenty-four hours before it occurred, and at its February 10 and February 28, 2002 meetings by failing to post an agenda for these meetings at least twenty-four hours before they occurred and failing to restrict discussion to items that were identified on the meetings agenda. Based on the allegations made, we find no violation of the Open Meetings Act at the meetings that occurred on February 7 and February 16, 2002.
The Kentucky Court of Appeals has 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. " E. W. Scripps Company v. City of Louisville, Ky. App., 790 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings 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 County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E.W. Scripps Co ., above.
To promote this goal, the Open Meetings Law establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. KRS 61.823 provides, in relevant part:
(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) 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.
The language of the statute directing agency action is exact. 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. This notice may be "delivered personally, transmitted by facsimile machine, or mailed. . . ." 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 which houses the headquarters of the agency, at least twenty-four hours before the meeting. The statute makes no distinction between the written notice delivered to agency members and the media and the written notice posted in the named locations. Failure to include an agenda in the posted notice clearly constitutes less than strict compliance with the law.
Among the issues which this office directly addressed in 98-OMD-74 was the issue of whether an agency's failure to include the agenda in a special meeting notice posted at the agency's central office constituted a violation of the Act. The agency defended its actions, noting that the agenda was "on the table near the door" of the room in which the meeting was held. We rejected the agency's position, observing:
KRS 61.823(3) states that in the event of a special meeting, the public agency must provide written notice. The notice must contain "the date, time, and place of the special meeting and the agenda ." (Emphasis added.) This provision operates in tandem with KRS 61.823(4)(b) which requires that as soon as possible, but at least twenty-four hours before the special meeting, "written notice shall 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."
In 96-OMD-216, this office held that the failure to include the agenda in the written notice of a special meeting constituted a violation of the Open Meetings Act. See also 94-OMD-119. We reach the same conclusion in this appeal. It is not sufficient, in our view, to place the agenda on a table 'within sight of and close to the door." [T]he failure to include the agenda in the posted notice rendered it inaccessible to the public for any and all of the twenty-four hours preceding the special meeting [.] We are not persuaded that the Board's actions relative to the posted notice represented substantial compliance with KRS 61.823(3) and (4)(b). Rather, we find that the omission of the agenda from that notice constituted a violation of the strict letter of the Open Meetings Act.
98-OMD-74, p. 4; see also 99-OMD-203, 01-OMD-135, note 4, 01-OMD-154; 01-OMD-175, 02-OMD-11. The overwhelming weight of authority, coupled with the express language of the statute, compels us to conclude that the Bourbon County Board of Education violated KRS 61.823 in failing to include an agenda in its posted notices of special meetings.
Nor do we believe that this is the only valid complaint Ms. Smith makes. Instead, we find that the Board's failure to finalize special meeting agendas at least twenty-four hours before those meetings, and to limit discussions at those meetings to the items listed in the agendas constitutes a violation of KRS 61.823. In 01-OMD-154, the Attorney General determined that the addition of agenda items within twenty-four hours of a special meeting contravened the requirements of KRS 61.823, as did the failure to confine discussion at the meeting to items listed on the agenda. Expanding on this position, in 01-OMD-175 we opined:
[t]he public has a right to expect strict compliance with the requirement that discussions and actions at the meeting be limited to items listed on the agenda contained in the notice. Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings. Public agencies do not enjoy the same freedom to discuss, or act upon, matters entrusted to them in a special meeting, but are, as noted, restricted to discussion of, or action on, agenda items.
01-OMD-175, p. 6 (also holding that agenda items must be identified with sufficient specificity to insure fair notice to the public, and that agenda items such as "old business" and "new business" do not satisfy this standard). The Board does not dispute Ms. Smith's allegation that its meeting agendas were not finalized twenty-four hours in advance of its special meetings or that it failed to restrict discussions at special meetings to items listed on the agenda. To this extent, its actions also constituted a violation of KRS 6.823.
The fact that some of the special meetings Ms. Smith challenged were primarily informational and that no action was taken at those meetings does not excuse the violations. KRS 61.810(1) mandates that any meeting of a quorum of the members of a public agency at which public business is discussed or action is taken must conform to the requirements of the Open Meetings Act. As we noted in 98-OMD-74, "We attach significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'" The Act does not permit a relaxation of the requirements for meetings at which no action is taken. We believe the requirements apply with equal force under these circumstances.
We do not believe a violation of the Open Meetings Act occurred when the Board's February 7, 2002 special meeting was cancelled based on the agency's recognition of open meetings error, or when, at the Board's May 16, 2002 regular meeting, the Board ratified actions taken at its previous meeting because that meeting had been called into question under the Open Meetings Act. Finally, we do not believe that the Board can be deemed in violation of the Open Meetings Act because it conducts numerous special meetings. The Attorney General's role in adjudicating an open meetings dispute is a narrow one. We are not empowered to resolve disputes that involve issues beyond the scope of the Act. Simply stated, the Act does not prohibit, or even address, such actions, and we therefore decline to render a decision on these issues.
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, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 Although Ms. Smith did not specifically raise the issue of the meeting's location, this office has recently recognized that "a public meeting presupposes the right of the public freely to attend such meetings . . . [and a]nything which tends to 'cabin, crib, or confine' the public in this respect would be destructive of the right expressly provided . . . ." 02-OMD-78, p. 5 citing City of Lexington, et al. v. Davis, et al., 310 Ky. 751, 754, 221 S.W.2d 659, (1949). The latter case involved a public meeting conducted in a private residence. The court concluded that the proper place for a public meeting "must not only be one to which the public is generally invited and may freely attend, but it must also be a place from which no part of the citizens are expressly excluded or who may be excluded by reason of not feeling they may freely attend. " Id . In 02-OMD-78, the Attorney General adopted the court's reasoning, concluding that "anything that tends to inhibit the public's ability to freely attend a public meeting . . . contravenes the requirement of a meeting place that is convenient to the public, codified at KRS 61.820," and that "any other holding creates the potential for abuse." 02-OMD-78, p. 6. The work session conducted in Chairperson Summay's home on October 24, 2001 is clearly vulnerable to the same criticism.
2 The facts relating to the issue of notice to the press are disputed. Ms. Smith maintains that no notice was issued to the media. Ms. Summay responds that no media organizations had requested notice, but that she "believes" notice was nevertheless issued. She concedes that she can offer no proof that notice was given. Due to the conflicting evidentiary record, and the lack of specific proof supporting either of the parties' positions, we are unable to resolve this issue.
3 Although this statement, if in fact it was made, does not constitute a violation of the Open Meetings Act, it clearly reflects a lack of understanding of, and appreciation for, both the spirit and the letter of that law.