Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the actions of the Lewis County Board of Health relative to its meetings of December 6, 2002, and December 13, 2002, violated the Open Meetings Act. For the reasons that follow, and upon the authorities cited, we conclude that the Board violated KRS 61.846(1) in failing to respond to an open meetings complaint within three days after its receipt. In addition, we conclude that the Board's failure to substantiate that it had adopted a schedule of its regular meetings and made same available to the public also constituted a violation of the Act.
On December 23, 2002, Terry Highfield submitted a written complaint to George Plummer, Chairman, Lewis County Board of Health, in which he alleged that the Board's meetings on December 6, 2002, and December 13, 2002, were illegally called meetings because the Board did not make a schedule of its regular meetings available to the public and any actions taken at the improperly called meetings should be declared null and void.
As a means of remedying the alleged violation, Mr. Highfield proposed that the Board discuss at a future meeting, in an open and public session, those matters discussed at the improperly called meetings of December 6, 2002, and December 13, 2002.
In his letter of appeal dated January 22, 2003, Mr. Highfield indicated that he had received no written response to his complaint.
Following the commencement of Mr. Highfield's appeal, Clayton G. Lykins, Jr., Lewis County Attorney, on behalf of the Board, provided this office with a response to the issues raised in the appeal. In his response, Mr. Lykins advised:
This letter is in response to your correspondence concerning the above-referenced. I was told by Kathy Ginn, the Secretary for the Lewis County Board of Health that the meeting on December 6, 2002, was a regular meeting which time is known and provided to the public, which meeting was open to the public. She says the December 13, 2002 was a recessed meeting. Ms. Ginn states there was a closed session in the meetings to discuss a personnel matter.
KRS 61.846(1) establishes the duties of a public agency in responding to an open meetings complaint. That statute provides:
The person 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 complaint'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.
Mr. Highfield, in his letter of appeal, dated January 22, 2003, indicated he had not received a response to his complaint. In its response to the letter of appeal, the Board offered no explanation for its failure to timely respond to Mr. Highfield's complaint. The failure of the Board to provide a written response to the complaint within three business days after its receipt constituted a procedural violation of the Open Meetings Act. KRS 61.846(1). The procedural requirements of the Open Meeting Act are not mere formalities but are instead essential to the prompt and orderly processing of an open meetings complaint. The Board should be guided by these observations in responding to future open meetings complaints.
Addressing the substantive issue, Mr. Highfield complains the Board failed to give proper notice of its public meetings by making available to the public a schedule of its regularly scheduled meetings. The Board's response states that its December 6, 2002, meeting was a regularly scheduled meeting and its December 13, 2002, meeting was a recessed meeting of the regularly scheduled December 6 meeting. The response does not, however, indicate whether the Board had adopted a schedule of regular meetings and made that schedule available to the public. If it had not done so, the failure would constitute a violation of the Open Meetings Act. KRS 61.820. If the December 6 meeting was not a regular meeting, then it was a special meeting requiring the need for special meeting notice pursuant to KRS 61.823. Given the paucity of information available, we cannot determine if additional violations of the Act occurred. We do, however, for guidance in this regard set forth the requisite duties a public agency must discharge under KRS 61.820, or alternatively, KRS 61.823.
In 94-OMD-50, the Attorney General recognized:
There are only two kinds of meetings--regular meetings and special meetings.
Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. [KRS 61.820.]
Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b)). These requirements must be met each time for each called special meeting.
94-OMD-50, p. 4. With respect to these requirements, the Kentucky Supreme Court has observed, "The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," and 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
W. W. Scripps Co. v. City of Maysville, Ky.App., 790 S.W.2d 450 (1990).
As noted above, the Board has not substantiated that it has adopted a schedule of regular meetings and made it available to the public, thus it has failed to demonstrate that the Board is in compliance with the requirements of KRS 61.820. Moreover, if no schedule of regular Board meetings exists, we must assume that the meetings were special meetings. As a special meeting, written notice, consisting of the date, time, and place of the meeting, and an agenda of items to be discussed, must be sent to the Board members and media organizations which had requested notification at least 24 hours before the meeting. In addition, written notice of the special meeting must be posted in a conspicuous place in the building where the special meeting is to take place, and in the building which houses the Board's headquarters, at least 24 hours before the meeting. If the Board's meetings were special meetings, and if the Board did not strictly comply with these requirements, its actions would constitute a violation of KRS 61.823.
In its response to the letter of appeal, the Board indicated that the December 6, 2002, meeting was a regular meeting and the December 13, 2002, meeting was a "recessed meeting." In 02-OMD-127, this office discussed at length continuation of meetings and the distinction between recessed and adjourned meetings. At pages 4-6 of that decision, we stated:
The Kentucky Open Meetings Act (KRS 61.805 through KRS 61.850) contains provisions pertaining to regular meetings (KRS 61.820) and special meetings (KRS 61.823). There are no provisions in the Open Meetings Act dealing with the continuation of meetings so we must look elsewhere to determine the status of such meetings.
In Robert's Rule of Order Revised by General Henry M. Robert, § 18, at page 65, the following appears in part:
In 4 McQuillin Mun. Corp. (3rd Ed.), 13.39, the author states in part:
In Town of Hodgenville v. Kentucky Utilities Co., 250 Ky. 195, 61 S.W.2d 1047 (1933), the court said in part:
Based on these authorities, we concluded:
We have not been provided with an explanation as to what occurred at either meeting. If in fact the December 6 meeting was a regular meeting and the facts reflect that a motion was made to recess or to adjourn the meeting to December 13, and a quorum of the Board voted to do so, then we believe the December 13 meeting would constitute an "adjourned meeting." The Open Meetings Act does not address the issue of notice for adjourned or recessed meetings. However, in OAG 78-499, we held that an "adjourned meeting" should be treated as a special meeting so far as giving notice to the media is concerned. We believe the same would apply for giving notice of an adjourned meeting to the public in general. Because an adjourned meeting would not be on a schedule of regular meetings, the notice requirements for special meetings set forth in KRS 61.823, should be followed in order that the public receive adequate notice of the meeting. This would be consistent with the express purpose of the Open Meetings Act to "maximize notice of public meetings and actions," and 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). If both meetings were in fact "special meetings," then compliance with the notice requirements of KRS 61.823 would also required.
Finally, the Board's response to the letter of appeal stated "there was a closed session in the meetings to discuss a personnel matter. An agency cannot go into closed session to discuss general personnel matters. KRS 61.810(1)(f). In 97-OMD-110, this office addressed the issue of public agency requirements when it goes into closed session to discuss personnel matters. In that decision, we stated:
A public agency's authority to go into a closed session relative to personnel matters is severely restricted. General personnel matters cannot be discussed in a closed session. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. See 93-OMD-49, at page three, and OAG 90-125, at page two.
Prior to going into a closed session for one of the specific purposes authorized by KRS 61.810(1)(f) , a public agency must state during the regular and open portion of the meeting the general nature of the business to be discussed and the reason for the closed session. While the public need not be advised as to the name of the specific person being discussed in connection with a possible appointment, dismissal, or disciplinary action, the public is entitled to know the general nature of the discussion which would be that it involves either a possible appointment, a possible dismissal, or a possible disciplinary matter relative to a specific unnamed person or persons.
97-OMD-110, p. 3.
97-OMD-110 firmly establishes that an agency complies with the requirements of KRS 61.815(1)(a) and KRS 61.810(1)(f) by announcing, in open session, that pursuant to KRS 61.810(1)(f) it is going into closed session to discuss either the appointment, or the discipline, or the dismissal of an employee or employees of the agency, indicating which of these particular actions is contemplated. The agency is not required to identify, by name, the employee or employees who will be discussed, nor is it restricted to a discussion of one individual employee at a time. The record before us does not reflect whether the Board observed these formalities before going into closed session.
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 proceeding.
Terry HighfieldRR2, Box 39AVanceburg, KY 41179
George Plummer, ChairmanLewis County Board of Health905 Fairlane DriveP.O. Box 219Vanceburg, KY 41179
Clayton G. Lykins, Jr.Lewis County Attorney514 Second StreetVanceburg, KY 41179