Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Graymoor-Devondale violated the Kentucky Open Meetings Act, namely, KRS 61.840, by failing to provide meeting room conditions which insofar as feasible allowed effective public observation of the meeting held by the City on April 2, 2007, and whether the City violated KRS 61.846(1) by failing to respond upon receipt of the written complaint submitted by Nicholas Glaser, M.D. While the admitted failure to provide adequate seating is arguably inconsistent with the spirit, if not the letter, of KRS 61.840, this office is unable to find a violation on the facts presented since there is no evidence that anyone in attendance was unable to see and/or hear during the meeting; however, failing to respond within three business days to a complaint, in writing, as the City did here, constitutes a violation of KRS 61.846(1).
By letter directed to Mayor John Vaughan, the presiding officer of the Graymoor-Devondale City Council, on May 1, 2007, Dr. Glaser submitted the following complaint:
When Mrs. Glaser, Mrs. Albert Schmitt, and I came into [C]ity [H]all you told us although it was a public meeting and we were welcome to stay you did not expect anyone to attend and had you thought people would show up you would have had the meeting across the street at the Episcopal Church Home-which was, in fact, available that evening for a meeting of the Graymoor-Devondale city council. [sic]
You also said you were not obligated to provide us with a place to sit.
This meant there was one chair at a desk available for seating. You did not offer to bring out the approximately 10-12 other chairs in the offices in [C]ity [H]all.
This was a three hour meeting and your refusal to provide seating readily available rendered it practically impossible for the public to attend since we would have been required to stand up for the entire three hours.
All twelve residents who tried to attend the meeting left soon after arriving because of a lack of seating. The legal notice on the [C]ity [H]all door announcing the meeting stated we were welcome to attend. Obviously, we were not welcome at all because standing for three hours is not a viable option for most people.
My understanding of the Open Meetings Act [is that it] requires all public meetings must be conducted in a room allowing effective observation by the public if possible.
I fail to understand why you did not expect people to attend. The April 2nd meeting was discussed openly in at least two regularly scheduled Graymoor-Devondale meetings--the last time being the March 27th meeting the week before.
In Dr. Glaser's view, the City's "failure to have the April 2nd meeting in the usual room that was available that evening in the Episcopal Church Home across the street," and its "refusal to bring out seating readily available in [C]ity [H]all engendered a hostile environment for the public and constituted a violation of the Open Meetings Act. " 1 As of May 22, 2007, the date of his letter initiating this appeal, Dr. Glaser had not received a response of any kind to his complaint.
Upon receiving notification of Dr. Glaser's appeal from this office, John Singler, City Attorney, responded on behalf of his client as follows:
At least a year ago, one of the City Council Members came up with the idea to have a strategic plan for the City. This plan was extensively discussed over many, many, many regular meetings of the City Council.
In this election cycle, the [C]ouncil [M]ember who came up with the idea decided not to run. The new [C]ouncil did not want his idea to die and decided the strategic plan should be updated and reviewed as part of putting together a budget for the next year. Over the course of several regular meetings, it became apparent that the City meetings were running way [too] long to take up this issue, along with the other regular business. So, it was decided to hold an informal discussion where the [C]ouncil members would be able to go over the strategic plan and update it where necessary. Although no business other than discussion was to take place, there was a quorum present and we noticed the meeting just like a special meeting of the [C]ouncil. Since this was a limited meeting, the City did not expect many of the public to attend and decided to just hold the meeting at the City [H]all, rather than at the regular meeting place.
However, just before the meeting, a resident placed signs all over the neighborhood advertising this meeting as some kind of national emergency. Therefore, due to this misinformation, a large group of residents unexpectedly descended on the City [H]all. The City [H]all office is also the police office. It is simply a converted neighborhood house and is not set up for a large meeting. The City simply did the best it could under the circumstances. There was no reason to expect such a large group of residents to [attend] such a meeting. The City is sorry that Dr. Glaser was misled into thinking that this informal planning meeting 2 was some kind of must attend event. The City certainly is sorry that there was not enough seating for all those who were misled along with Dr. Glaser. All we can say is that we posted the proper notices for the meeting, we allowed all residents who showed up to observe the meeting and thought that in all respects we were compliant with the statutes.
Because KRS 61.840 does not address the "failure to bring out seating readily available, " but requires only that a public agency provide conditions which insofar as feasible allow effective public observation, this office is unable to find that a violation occurred, though changing the location of the meeting coupled with characterizing the meeting as "informal" and refusing to provide available seating does, in our view, at least suggest an intent or preference to exclude the public.
To begin, the City violated the Open Meetings Act from a procedural standpoint insofar as the City failed to issue a written response within three business days. More specifically, the procedural guidelines to which a public agency must adhere in responding to complaints are codified at KRS 61.846(1). Upon receiving a complaint submitted under the Open Meetings Act:
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. If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. 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.
KRS 61.846(1). In construing this provision, the Attorney General has observed:
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.
03-OMD-116, p. 2.
On appeal, Dr. Glaser alleges that Mayor Vaughan failed to respond upon receipt of his complaint; the City does not refute this assertion. As the Attorney General has consistently recognized with regard to procedural requirements of the Open Records Act, in a statement which applies with equal force to the Open Meetings Act, such requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open [meetings complaint]." 93-ORD-125, p. 5; 03-ORD-190. In Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals articulated a demanding standard by which the adequacy of a public agency's response must be judged:
The language of [KRS 61.880(1)/KRS 61.846(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents [or a complaint] . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
See 04-OMD-102; 04-OMD-029; 00-OMD-142; 97-OMD-43; 96-OMD-261. To the extent that the City failed to issue a written response within the designated time frame of three business days, the City violated KRS 61.846(1).
Resolution of the substantive issue presented necessarily turns on application of KRS 61.840, pursuant to which:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
When called upon to render a decision involving statutory interpretation, this office is required "to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, the Attorney General is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, this office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). We "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra.
In construing this KRS 61.840, the Attorney General has recognized, on at least two occasions, this provision "vests the public with a virtually unconditional right to attend all meetings of a public agency. " 00-OMD-169, p. 3. Imposing conditions on attendance, such as residence in the city or county served by the public agency (98-OMD-44), or a signature on a mandatory sign-in sheet (98-OMD-44; 00-OMD-63), contravenes KRS 61.840.
Neither this provision, nor any other provision of the Open Meetings Act, has been interpreted to vest the public with a right to participate, by means of public comment, in a meeting. In 95-OMD-99, the Attorney General made the following distinction:
While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.
Id., p. 2 (emphasis added). To advance the public's "concurrent right freely to express any approval or disapproval of any action or course to be taken," City of Lexington v. Davis, 310 KY. 751, 221 S.W.2d 659, 661 (1945), the Attorney General has nevertheless encouraged public agencies to adopt procedural rules that "include procedures permitting members of the public to address the public agency. " 95-OMD-99, p. 3; 02-OMD-181. Likewise, this office urges the City and other public agencies to consider the comfort of attendees, within reason, 3 particularly in situations where the meeting is changed to a different location than usual.
While the right to participate, or lack thereof, is clearly not in dispute here, the reasoning is equally applicable in our view. Because KRS 61.840 does not address the situation at hand or expressly require a public agency to provide enough chairs for everyone who attends a public meeting (regular or special) to have a seat, 4 nor can the Attorney General read such a requirement into the statute, this office is unable to find a violation on the facts presented; 5 however, this office does believe that such a reasonable accommodation should be made whenever feasible, in accordance with the express policy of the Open Meetings Act codified at KRS 61.800, as well as prior decisions of this office interpreting KRS 61.840. See 05-OMD-011 (applying a "rule of reasonableness" in matters not specifically addressed by the Open Meetings Act in construing KRS 61.820, the companion to KRS 61.840), p. 5. Absent evidence that persons were unable to "observe with their eyes and ears" the meeting in question, this office must conclude that the City did not violate the Open Meetings Act with the exception of the noted procedural deficiency.
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 Lacking from Dr. Glaser's complaint is a proposed remedy for the alleged violation; however, the City did not challenge this omission, either initially or in responding to Dr. Glaser's appeal. In relevant part, KRS 61.846(1) provides that a "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." Because the City has essentially waived any objection, this office will proceed to address the merits of Dr. Glaser's appeal.
2 With certain enumerated exceptions which are not applicable, KRS 61. 810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which 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[.]" Of particular significance, KRS 61.805(1) defines "meeting" as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " When viewed in conjunction, the express language of these provisions indicates that an "informal discussion" or "limited meeting" of a quorum of the City Council at which public business is discussed or final action is taken is properly characterized as a meeting in the relevant sense regardless of whether a crowd is expected or the subject of discussion is limited. See 03-OMD-178, pp. 8-9. Because the City implicitly acknowledges that every meeting is either a regular meeting or a special meeting, as long recognized by this office, and the City posted a notice, which presumably complied with KRS 61.823, further discussion is unnecessary.
3 Here, the City does not deny that adequate seating was not provided nor does the City refute the claim that additional chairs were readily available or dispute the assertion that another site was both available and in proximity.
4 In contrast, the Attorney General has, in more than one instance, declared that a public agency's failure to address the problem of overcrowding at a meeting site constitutes a violation of the Act. See 97-OMD-28, p. 2; 98-OMD-74; compare 06-OMD-079; 03-OMD-178; 98-OMD-44; 94-OMD-87.
5 Further support for this conclusion is found in 04-OMD-145, a copy of which is attached hereto and incorporated by reference. Applying the less demanding standard established by the Kentucky Supreme Court relative to application of KRS 61.820 and KRS 61.840 in Knox County v. Hammons, Ky., 129 S.W.3d 839, 841 (2004)(it was undisputed that numerous citizens were unable to enter the courtroom where the meeting was held but observed the proceedings from the hallway), this office concluded that the City of Windy Hills "held its meeting at a specified time and place sufficiently 'convenient to the public' as mandated by KRS 61.820 and provided meeting room conditions which allowed 'effective public observation' of its meeting . . . as mandated by KRS 61.840." Id., p. 6.