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 Foley Middle School Site Based Decision Making Council violated the Open Meetings Act by failing to comply with the requirements of the Act prior to, and in the course of, its June 25, 2003 special meeting which was held at 5:30 p.m. and preceded by a 4:30 p.m. work session. For the reasons that follow, we find that the SBDM violated KRS 61.823, relating to notice of special meetings, at the June 25 meeting. Further, we find that the SBDM violated KRS 61.810(1), requiring open, public meetings anytime a quorum of the members of a public agency are gathered and public business is discussed or action taken. However, based on the reasoning set forth in 03-OMD-149, we find that the SBDM did not violate KRS 61.823(3) in failing to provide sufficiently specific agenda topics.
On July 11, 2003, Kim Chasteen submitted a written complaint to Arno Norwell, Principal of Foley Middle School and Chairman of its Site Based Council. Ms. Chasteen's allegations and Mr. Norwell's responses thereto, contained in a letter dated July 15, are summarized below:
1. The June 25 meetings were not properly advertised; 1
2. The agenda read "Special Meeting at 5:30;"
3. No agenda was posted for the 4:30 meeting;
4. The Richmond Register contained a notice that the meeting would be held at 5:30 on June 25;
5. Mr. Norwell "referred to the special meeting on June 25 [as a] 'Workshop Session' but it was advertised as a special meeting, " and when queried about the discrepancy, Mr. Norwell "shrugged it off as no big deal, calling it an oversight;"
6. The SBDM acknowledged, upon inquiry, that the 4:30 work session was held for the purpose of discussing the dress code prepared by parents, but nothing was posted regarding this topic at the time of or before the 4:30 meeting and a smaller than usual audience therefore attended the 4:30 meeting.
7. Item 3 of the agenda for the 5:30 meeting, "School Dress Code" was not specific enough according to KRS 61.823(3) since "parents were under the impression [that] the dress code had already been accepted for the upcoming school year[;]"
8. Item 3 of the agenda should have read "First reading of the School Dress Code" [since the agenda item at the June 30 meeting read "Second Reading of Standardized Dress Code" ];
9. The gathering between [Mr. Norwell], Ms. Scully, Ms. Martin, Mr. Banks, and Ms. Knezevich in the office between the 4:30 meeting and the 5:30 meeting, which three parents witnessed, constituted a violation of the Open Meeting Act;
Dissatisfied with these responses, Ms. Chasteen initiated an open meetings appeal on August 6, 2003, asserting that the SBDM violated KRS 61.823 in failing to provide adequate notice of the June 25 meetings and KRS 61.810(1) in conducting a meeting of a quorum of its members from which the public was excluded in the interval between the 4:30 work session and 5:30 special meeting. With the single exception noted below, we agree.
On at least one occasion this office has addressed the propriety of agency notice of a work session and held that the notice was deficient. Thus, in 02-OMD-11 we determined that the notice of a work session that preceded a planning and zoning commission's regular meeting improperly omitted an agenda. The disputed meeting notice read as follows:
NOTICE OF WORK SESSION
THE FRANKFORT/FRANKLIN COUNTY PLANNING COMMISSION WILL HOLD A WORK SESSION AT 5:30 P.M. In THE COUNCIL CHAMBERS OF CITY HALL, 315 WEST MAIN STREET ON WEDNESDAY, DECEMBER 12, 2001.
At page 7 of 02-OMD-11, we evaluated the adequacy of this notice, observing:
Although the work session notice adequately identified the date, time, and place of the special meeting and was delivered to the media in a timely fashion [footnote omitted] , it did not contain an agenda [footnote omitted] identifying the topic to be discussed, namely future plans for state building locations in downtown Frankfort. "The failure to include an agenda of the items to be discussed in the written notices of the upcoming special meeting to the media [and the members of the public agency] ," the Attorney General recently observed, "is inconsistent with the principle of 'maximiz[ing] notice of public meetings and actions,' and represents less than strict compliance with the letter of the law." 01-OMD-135, p. 5; see also, 01-OMD-154. The record before us does not support the Commission's position that the work session was properly noticed to the public. There is no evidence that the notice contained an agenda, that it was delivered to Commission members, or that it was posted in a conspicuous place in the building that houses its headquarters and the building where the meeting was held. The Commission did not include an agenda in its meeting notice, and this omission constituted a violation of KRS 61.823. If any of the other requirements discussed above were not met, these omissions constituted additional violations of the Act.
On this basis, we concluded that the complainant's objections to the notice of the work session that preceded the agency's regular meeting were "well-founded." 02-OMD-11, p. 5.
In support of our decision, this office extensively quoted from an earlier open meetings decision dealing with work sessions:
KRS 61.805(1) defines "meeting" as
KRS 61.810(1) provides in part that, "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]"
These definitions are broader in scope and coverage than what [the agency] contemplates. They go beyond "action on any matters of public business" and cover meetings of a quorum "at which any public business is discussed." See OAG 78-411 at page two. This office concluded in OAG 82-91 that a work session attended by a quorum of the fiscal court, at which the presentation of the budget is discussed, is an open and public meeting.
By definition a gathering of a quorum of the members of a public body, at an event described as a work session, must involve at least the discussion of public business or it would be a private session as opposed to a work session.
95-OMD-64, p. 2, cited in 99-OMD-213, p. 6. We concluded that "[u]nless the work session is a regularly scheduled meeting, within the meaning of KRS 61.820, it must be treated as a special meeting and is subject to all the notice requirements appertaining thereto." 02-OMD-11, p. 5.
The requirements for conducting special meetings are codified at KRS 61.823 which provides:
(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. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.
(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 Open Meetings Act thus imposes a duty on public agencies to provide written notice of all special meetings, including specially called work sessions. Inasmuch as "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," the Kentucky Supreme Court has declared that 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. v. City of Maysville, Ky. App., 790 S.W.2d 450 (1990).
In the interest of resolving any lingering confusion, we note that this office has firmly and emphatically stated:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of 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. 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.
92-OMD-1840, p. 3; see also 00-OMD-65. The work session of the Foley Middle School Site Based Decision Making Council was a special meeting for purposes of open meetings analysis, and the apparent omission of an agenda for the meeting and the location of the meeting (for example, the Foley Middle School Cafeteria, the Foley Middle School Library) violated KRS 61.823(3).
Although Mr. Norwell indicated that it was his understanding that the SBDM secretary posted the agenda for the work session, he did not provide this office with a copy of the agenda which must be included in the meeting notice per KRS 61.823(3). Inasmuch as the Records Retention Schedule - Public School District Model requires that Site-Based Decision Making Council/Committee Meeting notices be retained at the agency for one year, 2 and the disputed notice should therefore be available within the agency, we believe that the SBDM should have produced the notice, including agenda, to conclusively establish compliance. Ms. Chasteen furnished this office with the only copy of the meeting "notice, " in the form of photographs of the middle school sign board quoted at footnote 1, above. That "notice" did not identify the location of the meeting. Nor did it contain an agenda. In the absence of any evidence to the contrary, we must conclude that the work session/ special meeting notice did not conform to KRS 61.823(3) and violated the Open Meetings Act.
We agree with Ms. Chasteen that such notice as was given generated considerable confusion. The sign board indicated that a special meeting, later referred to as a work session, would commence at 4:30, but contained no reference to the 5:30 special meeting. The agenda for the special meeting indicated that it would commence at 5:30, but contained no reference to the 4:30 work session. Media organizations that had requested notice of special meetings, including The Richmond Register, were apparently only notified of the 5:30 special meeting. Bearing in mind that, as noted, "the express purpose of the Open Meetings Act is to maximize notice of public meetings and actions" and that anything less than strict compliance with the letter of the law violates the public good, Ratliff at 923, we find that these meetings were not properly noticed as to time. The SBDM's apparent attempt to "bootstrap" the meeting notices was, in our view, inadequate and misleading. 3
Further, we find that the record on appeal supports Ms. Chasteen's allegation that a violation of the Open Meetings Act occurred when a quorum of the members of the SBDM met in the office between the 4:30 work session and the 5:30 special meeting for the purpose of discussing potential applicants for employment, notwithstanding the fact that those meeting made no collective decision or promise to make a positive or negative decision or took an actual vote. As noted, KRS 61.805(1) defines the term "meeting" as all gatherings of every kind, regardless of where the meeting is held, whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. This provision, operating in tandem with KRS 61.810(1) mandates "open government only arrived at." 99-ORD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A.2d 563, 564 (N.J.Super.Ch. 1982).
KRS 61.810(1) mandates public meetings, open to the public, for all meetings of a quorum of the members of a public agency at which any public business is discussed or any action is taken. We reject the SBDM's suggestion that because no collective decision was reached and no commitment to make a positive or negative decision was made or vote taken, a private meeting of a quorum of the members of the SBDM was permissible. In Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court declared that "[t]he Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the meeting requirement of the Act." The Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." Id.
Mr. Norwell acknowledges that a quorum of the members of the SBDM were present in the office and that they discussed potential applicants for employment, an issue about which the SBDM has the option to take action based on the Foley Middle School Consultation Policy. This meeting, whether informational or educational, constituted a violation of the Open Meetings Act. Our decision is not altered by the fact that no final action was taken. KRS 61.810(1) prohibits all meetings or a quorum of the members of a public agency at which public business is discussed or action is taken. In construing KRS 61.810(1), the Attorney General has observed, "we attach significance to the use of the disjunctive particle 'or' rather than the conjunction 'and.'" 98-OMD-94, p. 5; 03-OMD-187, p. 8. The SBDM plays a significant role in the screening of potential applicants for employment, and meetings of a quorum of its members at which this or other public business is discussed are subject to the requirements of the Open Meetings Act notwithstanding the fact that it does not have particular authority to make a final hiring decision or otherwise take action on a given matter. 4
Turning to the adequacy of Item 3 appearing on the agenda for the 5:30 special meeting, we find that the SBDM satisfied the requirement of sufficient specificity when it employed the phrase "Student Dress Code" to describe the topic to be discussed. In 03-OMD-149, to which Ms. Chasteen and the SBDM were parties, this office determined that although the SBDM "should have employed more specific language in describing the sole agenda item [to wit, "Policy & Bylaws"], discussions at the meeting did not exceed the reasonable scope of that item as described." 03-OMD-149, p. 1. At page 6 of 03-OMD-149, we observed:
The Site Based Council might have employed more specific language in describing the agenda item, but that item, "Policy and Bylaws," cannot be equated with such vague descriptions as "old business" and "new business." Moreover, the record reflects that the parties to this appeal were fully aware that the meeting's sole purpose was to cure an error committed by the Council relative to the student dress code. Under these circumstances, we conclude that the description of the agenda item was sufficiently specific to insure fair notice to the public. We acknowledge that this is a very close question, and urge the Council to employ greater specificity in preparing agendas for special meetings in the future.
03-OMD-149 was issued on July 1, 2003, nine days after the violations alleged in this appeal occurred. The language employed by the SBDM in the June 25th 5:30 special meeting agenda ("Student Dress Code" ) reflected greater specificity than that approved in 03-OMD-149 ("Policy & Bylaws") and the language employed in the June 30 special meeting agenda ("Second Reading of Standardized Dress Code" ) reflected even greater precision. In light of this office's decision in 03-OMD-149, we are not prepared to say that Item 3 of the June 25 special meeting notice was insufficiently specific but urge the SBDM to continue to direct its efforts toward preparing agendas with "sufficient specificity in the description of items to be discussed to insure fair notice to the public." 01-OMD-175, p. 5, cited in 03-OMD-149, p. 5, and toward strictly adhering to the requirements of the Open Meetings Act generally.
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.
Kim Chasteen165 Dreyfus Rd.Berea, KY 40403
Arno Norwell, PrincipalFoley Middle School211 Glades RoadBerea, KY 40403
Patricia T. BauschSturgill, Turner, Barker and Moloney155 East Main StreetLexington, KY 40507-1300
Footnotes
Footnotes
1 In support, Ms. Chasteen submitted photographs of the school sign board containing the meeting announcement which read as follows:
Foley Middle School Special Meeting of the Site-Based Council On June 25th at 4:30
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2 Series No. L3008, Records Retention Schedule - Public School District Model.
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3 The better practice consists in issuing two separate meeting notices, including date, time, place and agenda for each meeting, or a single meeting notice, including date, time, place and agenda for each meeting, and indicating that a Work Session/ Special Meeting will commence at 4:30 and a special meeting at 5:30.
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4 If the SBDM discussed individual applicants in the course of the improperly convened private session, such discussion might fall within the parameters of KRS 61.810(1)(f) and properly be conducted in closed session, but such closed session discussion must be preceded by strict compliance with the requirements codified at KRS 61.815 in open session.
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