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 Local Distribution Fund Oversight Committee of the Governor's Office for Local Development violated the Kentucky Open Meetings Act in failing to comply with the notice requirements codified at KRS 61.823 prior to the special meeting held on June 20, 2007; more specifically, the question presented is whether the Committee violated KRS 61.872(3) in failing to provide written notice directly to the cities represented by Linda K. Ain. Given the mandatory and express language of KRS 61.872(4), this office finds that the Committee was not statutorily required to provide written notice directly to the Cities inasmuch as the Cities are neither members of the public agency nor media organizations which filed written requests to receive notice of special meetings; no violation occurred. Because the remaining issues are beyond the limited scope of the Attorney General's review under KRS 61.846(2), the Committee's denial of Ms. Ain's complaint is affirmed.
In a written complaint directed to Colleen B. Chaney, Acting Commissioner of GOLD/Chair of the Local Distribution Fund Oversight Committee on September 18, 2007, Ms. Ain, Attorney for the Cities of Cambridge, Green Spring, Sycamore and Ten Broeck, alleged that the Committee "failed to provide written notice of its June 20, 2007 meeting pursuant to KRS 61.823(3) , thus violating the Kentucky Open Meetings [Act codified at] KRS 61.805 to 61.850. Because the Cities did not have notice of the June 20th meeting, they were not represented at said meeting." As a means of remedying "this egregious violation of KRS 61.805 to 61.850," the Cities "demand" that the Committee and the Commissioner of Revenue "grant the increase the Cities[] requested in their Telecommunications Excise Tax Distribution Complaints." In addition, the Cities ask to be "awarded attorney's fees and damages."
In a timely written response, Acting Commissioner Chaney responded to Ms. Ain's request on behalf of the Committee. Acknowledging that a public agency "is required to provide written notice of every special meeting it holds[,]" Commissioner Chaney correctly observes that "under KRS 61.823(4), the agency is only required to provide such notice to members of the agency and to media organizations which have requested such notification, and therefore the Committee was not required to notify the Cities of the special meeting. " According to Commissioner Chaney, the Committee "fully complied with the Open Meetings Act by notifying the media and the Committee members and by posting the notice in a conspicuous place in the office where the meeting was held." Accordingly, the Committee denied Ms. Ain's complaint.
By letter dated October 5, 2007, Ms. Ain initiated this appeal on behalf of the Cities, noting that Commissioner Chaney's response "did not include copies of the notices to which she refers." Quoting the language of KRS 61.823(3), "the Cities question (1) if in fact said notices were sent; (2) whether the alleged notices were in compliance with the requirements of KRS 61.823(3); and (3) if items not on the agenda were discussed at the June 20th meeting." Relying upon KRS 61.823(4)(a), Ms. Ain asserts that because the Cities "were not given copies of theses alleged correspondences, the Cities cannot verify said notices were delivered to the appropriate parties." Likewise, Ms. Ain contends that posting a notice "in the office where the meeting was held" does not comply with KRS 61.823(4)(b). To the contrary, "the notice must be on the front of the building where the meeting was held, as opposed to the door to a suite of offices hidden away in a cavernous state office building." Noting that KRS 61.823(4)(b) also requires that a notice be posted "in a conspicuous place in the building which houses the headquarters of the agency," Ms. Ain further observes that Commissioner Chaney's response "fails to mention that said posting was made. Failure to post said notice in a conspicuous place in the building, which houses the headquarters of the agency is a violation of the Open Meetings Act. "
Quoting excerpts from E.W. Scripps Company v. City of Louisville, Ky. App., 790 S.W.2d 450, 452 (1990) and Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997), Ms. Ain argues that by failing to comply with the Open Meetings Act, the Committee "violated both the public good and the Cities' fundamental rights to due process of law." Additionally, she contends that the Committee "is not only required to comply with the notice requirements contained in the Open Meetings Act, but is also required to comply with the notice requirements contained in KRS 136.658." In her view, the Committee violated KRS 136.654(4) and (5) in failing to give the Cities proper notice of the special meeting held on June 20, 2007. Accordingly, Ms. Ain reiterates her request that the Committee "and the Commissioner of Revenue be required to grant the increase the Cities requested in their Telecommunications Excise Tax Distribution Complaints. Additionally, the Cities respectfully request that they be awarded attorney's fees and damages."
Upon receiving notification of Ms. Ain's appeal from this office, Allen O. Wilson, General Counsel for GOLD, supplemented the Committee's response. As correctly argued by Mr. Wilson, the Act "does not require that written notice be delivered personally, transmitted by facsimile machine, or mailed to the cities of Cambridge, Ten Broeck, Green Spring, or Sycamore. None of those cities are members of the public agency or media organizations which have filed written requests to receive notice of special meetings." Accordingly, the notice requirements of KRS 61.823 were complied with in his view. Quoting from 96-OMD-216, Mr. Allen notes the Attorney General has consistently held that a "'public agency's failure to supply the complaining party and its legal counsel with a copy of the notice of the special meeting was not a violation of the Open Meetings Act as they are not legally entitled to such notice under the Act.'" Consequently, the Committee denies "the sole alleged violation of the Open Meetings Act recited in the complaint. . . .Any other alleged violations first raised in the October 5, 2007 letter accompanying the complaint and denial are beyond the Attorney General's 'narrowly defined' scope of review, which, pursuant to KRS 61.846(2), includes the complaint and denial." On both counts, the Committee is correct.
In the event the Attorney General elects to consider those alleged violations, 1 the Committee denies each in turn:
First, the complaining party, though not directly stated, insinuated the denial was deficient because it "did not include copies of the notices [.]" Second, the complaining party alleged the posting of the notice did not comply with KRS 61.823(4)(b). Third, the complaining party alleged a violation of KRS Chapter 136.
The Open Meetings Act does not require that the denial include a copy of the notice. The denial complied with the requirements of KRS 61.846(1). It included a statement of the specific statute supporting the public agency's denial and a brief explanation of how the statute applied. The response was issued by the presiding officer.
The posting of the notice complied with KRS 61.823(4)(b). As indicated in the denial, the notice was posted in a conspicuous place in the office where the meeting was held. The building where the special meeting took place and the building which houses the headquarters of the agency are the same building. As the Office of the Attorney General has concluded, "[t]he 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. " 03-OMD-250. There is no proof of an attempt to conceal the notice in the instant appeal.
The alleged violation of KRS 136.654(4) and (5) and KRS 136.658(4) and (5)(a) and (b) is beyond the scope of this appeal. Pursuant to KRS 61.846(2), the decision is "whether the public agency violated the provisions of KRS 61.805 to 61.850."
Because the Committee is again correct in each assertion, as indicated in footnote 1, our analysis focuses exclusively on whether the Committee violated the Open Meetings Act in failing to provide written notice of the special meeting held on June 20, 2007, directly to the Cities, the sole issue properly raised in the complaint; KRS 61.823(4) dictates the result.
In challenging the actions of the Committee, the Cities relied upon KRS 61.823(3), 2 pursuant to which:
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.
However, this provision must be read in conjunction with KRS 61.823(4), upon which the Committee relied in denying the Cities' complaint. More specifically, resolution of this appeal hinges on the language of KRS 61.823(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.
In construing these provisions, the Kentucky Court of Appeals 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 Maysville, Ky. App., 750 S.W.2d 450, 452 (1990). Echoing this view, the Kentucky Supreme Court has confirmed:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The 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., supra. "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 A.2d 563, 564 (N.J. Super. Ch. 1982).
To promote this goal, the Open Meetings Act establishes the specific requirements, outlined above, which a public agency must fulfill prior to conducting a special meeting. As with the Open Records Act, the "language of the statute directing agency action is exact." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). KRS 61.823 requires the public agency to provide written notice of the special meeting consisting of the date, time, and place of the meeting, as well as the agenda, and to deliver written notice by one of the specified means to every member of the public agency, and media organizations that requested notification, at least 24 hours before the meeting is scheduled to occur. 3
When called upon to render a decision involving statutory interpretation, the Attorney General, like the judiciary, 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 determining 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). To summarize, "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. 4 Guided by these fundamental principles, this office must conclude that the Committee did not violate KRS 61.823(3) in failing to provide written notice directly to the Cities, but complied with KRS 61.823(4)(a) in providing written notice of the special meeting to members of the Committee and media organizations which filed a written request in advance to receive notification of any special meetings. "While we do not know whether the [Committee] sent the notices of the special meeting to [members of the Committee or the media organizations, the Cities do not challenge, nor does the record contain any evidence to refute this assertion, and] the fact remains that [the Cities and their counsel] are not among those entities and person[s] required by law to receive such notices. " 96-OMD-216, p. 3. As in that decision, this office finds that "the public agency's failure to supply the complaining party and its legal counsel with a copy of the notice of the special meeting was not a violation of the Open Meetings Act as they are not legally entitled to such notice under the Act." Id.
In closing, this office notes that the Attorney General is not empowered to compel the Committee to implement the remedial measures proposed by the Cities in their complaint and letter of appeal. To the contrary, the role of the Attorney General in resolving these matters is narrowly defined by KRS 61.846(2) to issuing a written decision "which states whether the agency violated the provisions of KRS 61.805 to 61.850." Relief like that requested by Ms. Ain is only available in circuit court as evidenced by KRS 61.848(1), (5), and (6). Having determined that the Committee did not fail to comply with the notice requirements for special meetings codified at KRS 61.823, this office has fully discharged its duty.
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 Because the Cities did not raise any of the related but separate allegations in the initial complaint filed with Commissioner Chaney, the Attorney General would generally decline to consider those allegations on appeal, given our limited scope of review under KRS 61.846(2), in the interest of both fairness and ensuring procedural compliance; however, the Committee has eliminated the former concern by addressing each of the allegations. Both parties have been heard. In the interest of efficiency (preventing the need for a future appeal involving the same parties and the same meeting), this office hereby clarifies that Mr. Wilson has correctly applied the relevant law in response to each of the allegations belatedly raised by the Cities; further discussion is therefore unwarranted.
2 In accordance with KRS 61.823(1): "Except as provided in subsection (5) of this section, special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section."
3 As indicated, KRS 61.823 also requires the public agency to post the written notice in a conspicuous place in the building where the meeting will take place, as well as the building which houses the agency headquarters, at least 24 hours before the meeting. To clarify, this issue was not preserved for consideration; however, the Committee has confirmed that the building where the meeting took place, and the building which houses the agency headquarters are one and the same in this case, and the General Assembly has not specified a place on which notice of a special meeting must be posted in order to comply with KRS 61.823(4)(b). Because the record is devoid of evidence to establish the Committee attempted to conceal the notice, Mr. Wilson correctly argues that discretion to make this determination rested with the Committee.
4 When two statutes concern the same or similar subject matter, the specific shall prevail over the general. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (2000); 02-ORD-19. The General Assembly "is presumed to be aware of the existing law at the time of enactment of a later statute." Id.