Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Livingston County Fiscal Court violated the Open Meetings Act by supplementing the minutes of its September 15, 2005, meeting with a "Clarification for the Record" in contravention of KRS 61.835. For the reasons that follow, we find that because the inclusion of this "Clarification" did not result in inaccuracies in the record of votes and actions found in the minutes of that meeting, within the meaning of KRS 61.835 , no violation of the Open Meetings Act can be imputed to the Fiscal Court. Nevertheless, we remind the Fiscal Court that as "a court of record" per KRS 67.800(1), its minutes constitute legal evidence of what transpires at its meetings and cannot be altered "to show something other than what actually occurred at [those] meetings." OAG 77-494, p. 1.
On April 11, 2006, Arnie Puckett submitted a written complaint to Livingston County Judge/Executive Chris Lasher "regarding manipulation of the minutes of the Fiscal Court Meetings." Specifically, Mr. Puckett alleged that Judge Lasher "instructed the clerk to type in an editorial by [Judge Lasher] stating:
FOR CLARIFICATION LET THE RECORD STATE:
Judge Lasher was first invited to a Water District Meeting by the Board. Judge Lasher came with no agreement and knew very little about the Sanitation District Finances. After many months of work with the Board, Interlocal Agreements were drafted that were acceptable to all parties. 1
Noting that these words were never spoken at the meeting, Mr. Puckett maintained that Judge Lasher's "editorial" was both "problematic" and "misleading." As a means of remedying this alleged violation, Mr. Puckett proposed that Judge Lasher "publicly reverse this editorial [,] . . . apologize to the county for abusing [his] office . . .[, and] make written notice to the Court that this manipulation of the Fiscal Court meetings will never occur again . . . ."
In a response also dated April 11, Judge Lasher denied Mr. Puckett's allegations. Relying on KRS 61.835, and, in particular, that portion of the statute requiring an "accurate record," Judge Lasher asserted that "[t]he clarification reflects an accurate account and was unanimously approved by the Fiscal Court without changes." On this basis, he refused to implement the proposed remedial measures. Shortly thereafter, Mr. Puckett initiated the instant appeal arguing that the minutes of a public meeting can only be corrected or clarified to "reflect what took place at the meeting" and not to advance the County Judge's self-interest or vindicate his position. It was his view that "[t]he minutes would be a more reliable reflection [of what occurred at the meeting] without his editorial. " While we agree with Mr. Puckett in principle, we do not agree that the inclusion of the "Clarification" constituted a violation of KRS 61.835 or of any other provision of the Open Meetings Act.
KRS 61.835 requires public agencies to maintain "an accurate record of votes and actions taken" at every meeting. (Emphasis added.) As a corollary of this rule of law, the Attorney General has opined that public agencies cannot direct the modification of the draft minutes "to show something other than what had actually occurred at the previous meeting." OAG 77-494, p. 1. In the latter opinion, the Attorney General was asked to determine whether a board member could change his or her vote on a motion voted on at the previous meeting before approval of the minutes of the previous meeting was sought. This office concluded that the draft minutes could only be changed if they inaccurately reflected the vote actually made by the board member. We observed:
The minutes may be amended at a subsequent meeting to conform them to the facts, but not to reflect a change in position on the matter involved in the question voted on. If through inadvertence the minutes have been inaccurately made, for example where the minutes failed to show the yeas and nays as actually voted, it is legal to correct the minutes according to the truth. It would be improper, however, to change the minutes to show something other than what had actually occurred at the previous meeting. To do this would be tantamount to falsification of records.
Accord, OAG 78-346; OAG 78-796; OAG 79-96. These opinions are premised on the notion that:
minutes may be amended . . . so as to reflect the truth of what occurred (such as to include an actual vote count), but deficiencies in the minutes cannot be corrected by an amendment which is based upon oral testimony or affidavit of an action by the board not even reflected in the minutes.
OAG 79-96, p. 3. To hold otherwise "would lessen, if not destroy, the faith of the public in the verity and permanence of public records. "
Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026, 1052, cited in OAG 78-346.
In 04-OMD-179, the Attorney General was asked to determine if a city commission violated the Open Meetings Act by modifying the draft minutes of a meeting to reflect compliance with the formalities for conducting a closed session codified at KRS 61.815. There, we concluded that the commission violated KRS 61.835 by modifying the minutes in such a manner that the minutes no longer contained "an accurate record of votes and actions" at the meeting. At page 7 of that decision, this office concluded that the modifications to the minutes approved by the commission "change[d] the minutes to show something other than what actually occurred at the previous meeting," and that "[t]he net effect of those modifications was to reflect compliance with the requirements of KRS 61.815(1)(a), when in reality the commission did not comply with the requirements." 04-OMD-179, p. 7. In sum, the Attorney General held that "the commission's actions with respect to KRS 61.815(1)(a) were deficient" and "[t]he minutes must record this fact" in order to contain an accurate record of votes and actions taken at the meeting. Id. 2
KRS 61.815(1)(a) requires certain actions and votes in advance of conducting a closed session. These include notice in open session of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session. KRS 61.815(1)(a). More importantly, the requirements include "a motion . . . made and carried by a majority vote in open, public session." KRS 61.815(1)(b). It is because the public agency whose minutes were contested in 04-OMD-179 modified those minutes to reflect compliance with these required votes and actions, when in fact the agency had not complied with these requirements, thereby rendering the minutes an inaccurate record of votes and actions, that this office found that the agency violated KRS 61.835. In contrast, the "Clarification" to the minutes that is at issue in the instant appeal did not render the record of votes and actions taken at the September 15 Fiscal Court meeting an inaccurate record. In discharging our statutory duty under the Open Meetings Act, we must focus on the narrowly worded provision found at KRS 61.835, requiring "an accurate record of votes and actions at" public agency meetings. Because the "Clarification" which Mr. Puckett challenges resulted in no inaccuracy in the record of votes and actions taken at the September 15 meeting, we find no violation of the Open Meetings Act. 3
Nevertheless, we find the Livingston Fiscal Court's actions with respect to the supplementation of the minutes deeply troubling. In an early opinion, Kentucky's courts questioned the practice of "correct[ing] or supplement[ing], add[ing] to or tak[ing] from" such records on the basis of human recollection, declaring that the practice "destroy [s] their value as record evidence, " and, as noted above, "lessen [s], if not destroy [s], the faith of the public in the verity and permanence of public records. "
Lancaster Electric Light Co. v. Taylor, 168 Ky. 179, 181 S.W.967 (1918); quoted in Janutola & Comadori Construction Co., above at 1052 and cited in OAG 78-346. Our decision should therefore not be construed as a license to engage in this practice, and is expressly limited to the facts presented herein.
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. Arnie Puckett333 Rudd SpeesLedbetter, KY 42058
Chris LasherLivingston County Judge/ExecutiveP.O. Box 70Smithland, KY 42081-0070
Billy N. RileyLivingston County AttorneyP.O. Box 97Smithland, KY 42081-0097
Footnotes
Footnotes
1 These remarks were indented and italicized in an apparent effort to distinguish them from the actual minutes of the meeting.
2 In 04-OMD-179, this office also recognized that typographical and spelling errors can be corrected prior to approving draft minutes, and that, consistent with the principles articulated in that decision, "modifications can[] be made to insure that the minutes conform to the facts." Because the modifications approved by the commission resulted in a deviation from the facts, we concluded that they were improper and inconsistent with the requirements found in KRS 61.835.
3 The Fiscal Court unanimously approved the minutes of the September 15 meeting "without changes." In OAG 65-887 this office opined, "the reading and approval of the minutes of the previous meeting constitutes an acknowledgement that the secretary has recorded the proceedings correctly. " Moreover, in Commonwealth ex rel. Matthews v. Ford, Ky., 444 S.W.2d 908, 909 (1969), the court declared "it is the responsibility of the members of public bodies to see to it that their votes are correctly recorded, " and that the minutes constitute an accurate record of what transpired at the meeting. The obvious corollary of this proposition is that objections to the content and accuracy of the minutes should be raised by the members of the body before the minutes are approved.