Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Site Based Decision Making Council (SBDM) of Butler County Middle School violated the Open Meetings Act in failing to respond to the written complaints of Mr. Flener and by holding a meeting of the ad hoc Interview Committee appointed by the SBDM council and a meeting of the SBDM council without providing proper notice of the meetings.
By letter dated January 23, 2005, J. Chad Flener submitted two separate written complaints to Hazel Short, Chairperson of the SBDM council of Butler County Middle School, alleging violations of the Open Meeting Act had occurred at the following SBDM meetings. In his letter, Mr. Flener alleged:
1.) On January 10, at 4:00 pm, an ad hoc Interview Committee appointed by the SBDM council, met in order to interview candidates for the posting of the Arts/Humanities vacancy at Butler County Middle School.
2.) On January 12, at 3:45 pm, the SBDM council of Butler County Middle School met in a special called meeting.
As a means of remedying the alleged violations, Mr. Flener proposed that the committee and the council both declare any action taken as a result of these improperly called meetings null and void. He further requested that the SBDM chairperson and the ad hoc Interview Committee chairperson properly schedule and notify media and committee/council members of a special called meeting in order that the matters may be discussed in an open and public session.
In his letter of appeal, Mr. Flener stated that Ms. Short, the chairperson of both committees, had failed to respond to the complaints.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Short provided this office with a response to the issues raised in the appeal. In her response, Ms. Short indicated that she had not responded to Mr. Flener's complaint because, after discussion with Central Office staff, they thought the complaint was filed under the Site Base Counsel's complaint procedure. Addressing the substance of Mr. Flener's complaints, she advised:
There has been no intentional violation of the open meeting act. In regard to Mr. Flener's allegations: 1)a), we did not provide 24 hour notice and I have since talked to other educationers including the Kentucky Association of School Councils (KASC) regarding allegations 1)a)b)c) and have found no one else who does. On 1)b), I provided the Council with verbal notice at the regular scheduled Site Base meeting and Mr. Flener agreed to interview the applicants in that meeting when it was announced (this was a properly announced public meeting) and Mr. Flener did not show for the interviews. On 1)c), we have never posted notices for interviews, they are not public events. Regarding 2)a) the media was notified of the January 12, meeting, the notice of the meeting was 24 hours in advance and the Council was given written notice, with the agenda, by email which is our practice, 24 hours in advance.
For the reasons that follow, we conclude that SBDM council violated the Open Meetings Act by not responding to Mr. Flener's complaints, as required by KRS 61.846(1) and failing to comply with the notice requirements of KRS 61.823 prior to its January 10, 2006 and January 12, 2006 special meetings.
We address first the SBDM council's failure to respond to Mr. Flener's complaints. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. 1 That statute provides, in part, as follows:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. 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.
In construing the operation of KRS 61.846(1), this office in 03-OMD-116, at p. 2, explained:
The statute does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period.
The facts before us in this appeal indicate that the SBDM council did not respond at all to Mr. Flener's written complaint. KRS 61.846(1) requires an agency response to an open meetings complaint in writing, and within three business days. A letter directed to the Attorney General following initiation of an open meetings appeal does not satisfy the statutory requirement found at KRS 61.846(1). Accordingly, we find that the failure of the SBDM council to respond to Mr. Flener's complaint in writing within the three-day period constituted a violation of KRS 61.846(1) and the Open Meetings Act.
We next address whether the SBDM council complied with the notice requirements prior to conducting the special meetings. In discussing the Open Meetings Act and the notice requirements of KRS 61.823, this office, in 04-OMD-184, pages 4 and 5, observed:
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:
Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), citing E.W. Scripps Co., above. "Kentucky's legislature, as well as its judiciary, have thus demonstrated their commitment to 'open government openly arrived at.'" 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A2d 563, 564 (N. J. Super. Ch. 1982).
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:
"The language of the statute directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). 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 24 hours before the meeting.
Addressing Mr. Flener's complaint concerning the January 10, 2006, meeting, Ms. Short acknowledged that 24 hour notice was not provided, and advised that verbal notice of the meeting was provided to the Council, and no notice was posted. Addressing the complaint concerning the January 12, 2006, meeting, she advised that the media was notified 24 hours in advance and that the Council was give written notice with the agenda by email.
In 03-OMD-197, this office held that the Danville Board of Ethics violated the Open Meetings Act by notifying its members of special meetings by telephone or email, concluding that such notice "did not satisfy the strict legal requirements codified in [KRS 61.823(3) and KRS 61.823(4)(a)], and should have been utilized in addition to, rather than in lieu of, the statutorily required methods of communication." 03-OMD-197, p. 7. Citing 02-OMD-91, in which the Attorney General rejected the use of emailed meeting notices, we observed:
At this time, the Open Meetings Act does not recognize the validity of an emailed meeting notice. In 00-OMD-227, the Kentucky Access Subcommittee posted its meeting notice on the Subcommittee website, and we concluded that the notice was ineffective. We reasoned that the meeting notice could be posted on the website "in addition to, rather than in lieu of," the delivery requirements codified at KRS 61.823. The same reasoning applies to emailed meeting notices until such time as the General Assembly elects to statutorily recognize the "new" technology.
02-OMD-91, p. 5, note 5 (holding that emailed notices transmitted to Pewee Valley City Council members was deficient); see also, 01-OMD-141 (holding that public announcement of upcoming public hospital committee meetings at hospital board's regular meeting, and inclusion of meeting dates in hospital's calendar of events, did not satisfy the specific requirements of KRS 61.823).
Because the Open Meetings Act does not recognize the validity of verbal notification, delivered in person or by telephone, or email notification, we find that the SBDM council violated KRS 61.823(3) and KRS 61.823(4)(a), requiring written notice of special meetings to be delivered personally, by fax, or by mail. Consistent with the cited authorities, verbal and email notice may be utilized in addition to, but not in lieu of, the statutorily required methods of communication.
Mr. Flener stated that the media was not notified 24 hours in advance of the meetings. The SBDM council acknowledged that notice was not provided in the January 10 meeting, but was provided to media for the January 12 meeting. Failure to so provide notice to the media is a violation of KRS 61.823(4)(a). We have insufficient information before us to resolve the dispute as to whether the notice was provided to the media of the January 12 meeting and make no finding on that issue.
In addition, the SBDM council also violated KRS 61.823(4)(b) to the extent it failed to post written notice of the special meetings in a conspicuous place in the building where the meetings were to take place and the building housing its headquarters at least twenty-four hours before the meeting. The duty to post written notice of special meetings is a separate and independent legal obligation of a public agency codified at KRS 61.823(4)(b). For these reasons, we find that the Council violated the Open Meetings Act in this regard.
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 In her response to this office, Ms. Short indicated that the SBDM council thought Mr. Flener's complaints were filed under the SBDM's complaint procedure and the council had thirty working days to have a hearing on the matter. Since the Attorney General assumed the role of dispute mediator in open meetings appeals, we have recognized that our authority under KRS 61.846(2) is narrowly defined. That statute directs the Attorney General to review the open meetings complaint and denial and issue a written decision "which states whether the agency violated the provisions of the Open Meetings Act. " (Emphasis added.) The office is not empowered to adjudicate a dispute relating to interpretation of, and compliance with, SBDM council's complaint procedures. We therefore respectfully decline to address this issue.