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 City of Frankfort violated the Open Meetings Act in failing to respond to Norman L. Snider's November 3, 2006, complaint and in failing to comply with KRS 61.823(4)(b), relating to the posting of special meeting notices. For the reasons that follow, we find the City violated the Open Meetings Act by failing to respond to the written complaint of Mr. Snider in writing, but further find that the record on appeal does not support the complaint that the City failed to comply with the posting of the notice in a conspicuous place requirement of KRS 61.823(4)(b).
On November 3, 2006, Norman L. Snider delivered a complaint to City of Frankfort Mayor William May in which he complained that the Special Meeting of the City Commission, held on November 3, 2006, at noon, was in violation of KRS 61.823(4)(b), because the written notice of the meeting was not placed in a conspicuous place in the building which houses the headquarters of the agency, City Hall. In support of his complaint, Mr. Snider stated:
The notice for the meeting in question was a typewritten notice placed within a passageway halfway down a long hall between the hallway of the City Hall and the Commission Chamber. Since there was no public meeting in the Chamber for the 24 hours previous to the November 3 meeting, there was no probability that any member of the public would have seen this notice.
As a means of remedying the alleged violation, Mr. Snider proposed the voiding of all actions taken at the meeting and revisiting the matter of the meeting in a properly announced Meeting.
After receipt of notification of the appeal and a copy of the letter of appeal, Robert C. Moore, City Attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Moore advised, in relevant part:
. . . the City properly provided notice of the special meeting by, at least twenty-four (24) hours before the meeting, posting the notice of the meeting on the bulletin board in the hall immediately outside the Commission public meeting room in the Frankfort City Hall. Please note that the bulletin board upon which the notice was posted is immediately adjacent to the calendar containing the schedule of upcoming City events. Notice of the subject special meeting was also properly provided to five media outlets including the Frankfort State Journal, WKED/WFKY radio station, Cable 10 local access television, WTVQ channel 36 television and the Lexington Herald-Leader on November 1, 2006. This is the procedure that has been used by the City of Frankfort for a number of years. A copy of the notice posted on the City bulletin board, a copy of the notice as appeared in the Frankfort State Journal and a copy of the notice provided to the four other media outlets is enclosed for your review.
Please note that Mr. Snider provided this letter complaining that the City of Frankfort did not comply with the requirements of KRS 61.823(4)(d) immediately before or during the November 3, 2006, City Commission meeting. At the close of the November 3, 2006, meeting, Mayor William I. May, Jr., escorted Mr. Snider to the bulletin board where the notice had been posted to show Mr. Snider that the notice had been posted in a conspicuous location.
We first address Mr. Snider's complaint that the City violated the Open Meetings Act by not responding to his complaint in writing. KRS 61.846(1) provides, in relevant part:
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.
(Emphasis added.) Although the City advised that the Mayor escorted Mr. Snider to the bulletin board after the November 3, 2006, meeting to show him that the notice had been posted in a conspicuous place, it failed to respond to his complaint in writing as required by KRS 61.846(1). To this extent the City violated the requirements of the Open Meetings Act.
Turning to the substance of Mr. Snider's complaint, we find that the record on appeal, does not support the claimed violation of KRS 61.823(4)(b) . KRS 61.823 establishes requirements for conducting a special meeting which include the following:
(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.
It is the posting in a "conspicuous place" requirement of KRS 61.823(4)(b) which gives rise to this appeal.
Mr. Snider complains that the City violated KRS 61.823(4)(b) when it posted the notice of its special meeting on a bulletin board in City Hall outside the City Commission meeting room, as opposed to on a bulletin board at the front or main entrance of the building. The City responds that it is an established practice for it to post all notices on the bulletin board in the hall outside the Commission meeting room in the Frankfort City Hall. This practice is, in the City's view, consistent with the statutory requirement of KRS 61.823(4)(b).
We believe this office's decision in 03-OMD-250 is controlling and adopt and incorporate herein by reference our reasoning set forth in that decision and apply it to the instant appeal. In 03-OMD-250, at p. 5-6., we stated:
The Kentucky General Assembly has not particularized a place on which notice of special meetings must be posted, and, absent proof of an attempt to conceal such notices, we believe that discretion rests with the public agency to determine what constitutes a conspicuous place. 1 The term "conspicuous" is variously defined as "obvious" "attracting attention," "noticeable," The American Heritage Dictionary 187 (3d ed. 1994) and "easy to see or perceive," and "attracting attention . . . ." Webster's New World Dictionary 304 (2d ed. 1974). A bulletin board located in that area of City Hall set aside for the transaction of public business satisfies these definitions. Accord, 00-OMD-142 (posting of written notice of special meeting on public bulletin board at city hall "complied in all particulars with the requirements found at KRS 61.823 . . . .").
Until such time as the General Assembly declares that special meeting notices must be posted on the doors of the buildings in which special meetings will be held and the buildings that house the agencies' headquarters, reasonable discretion must be said to reside with public agencies in making this determination. A bulletin board that is accessible to the public is "conspicuous, " as that term is commonly interpreted, 2 notwithstanding the fact that more conspicuous places may be available or the fact that it may not be conspicuous to the public for the full twenty-four hours preceding the special meeting. As noted above, absent evidence of an intent to conceal the special meeting notice in contravention of KRS 61.823(3)(b), we find no error in the City Council's decision to post its special meeting notice on the public bulletin board located in City Hall.
Accordingly, based on our reasoning in 03-OMD-250, we conclude that the City's posting of the notice of the special meeting on the bulletin board in the hall outside the Commission meeting room in the Frankfort City Hall did not constitute a violation of KRS 61.823(4)(d).
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 With regard to the requirement that agencies adopt rules and regulations governing access to public records, KRS 61.876(2) provides that such rules and regulations "shall be displayed . . . in a prominent location accessible to the public" but does not specify a particular location.
2 In matters of statutory construction, words must be "construed according to the common and approved usage of language." KRS 446.080(4).