Request By:
Louis S. McCord
Delbert Reid
Robert E. Bathalter
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Butler 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 April 10, 2008, and in failing to issue a written response to Louis S. McCord's written complaint within three business days of receipt in accordance with KRS 61.846(1). Based upon a line of decisions interpreting the mandatory language of these provisions, the answer to both questions is unequivocally "yes"; however, the City has acknowledged failing to comply with KRS 61.846(1) and concedes that "if" the meeting in question was a "special meeting, " then proper notice was required under KRS 61.823(3) and (4) but was not provided. To remedy these errors, the City has agreed to discuss the matters which necessitated the April 10, 2008, special meeting at the regular meeting on June 2, 2008, at which time the City will also reappoint the three members of the City Council who volunteered to serve on the committee. 1
By undated letter directed to Mayor Delbert Reid, the presiding officer of the City Council, Mr. McCord submitted a complaint "concerning an action that took place at the City Council meeting held on April 7, 2008. At that meeting the Council agreed to have a special meeting on April 10, 2008 'to discuss a few matters.'" As correctly asserted by Mr. McCord, the City Council "cannot legally have a special meeting 'to discuss a few matters.' An agenda for the special meeting must be stated and strictly adhered to." In addition, a notice for the special meeting "must be posted at least 24 hours in advance of such meeting stating the agenda" and must be "posted in a conspicuous place on the building where the meeting is to take place." According to Mr. McCord, no such agenda or proper notice was posted in advance of the special meeting held on April 10, 2008. To remedy the alleged violations, Mr. McCord proposed that the City Council "discuss at a future meeting, in an open and public session, those matters that were discussed at the improperly called meeting on April 10, 2008." In his view, any "action taken as a result of the improperly called session should be declared null and void. " 2 Having received no response to his written complaint, Mr. McCord initiated this appeal by undated letter which the Attorney General received on May 2, 2008.
Upon receiving notification of Mr. McCord's appeal from this office, City Attorney Robert E. Bathalter responded on behalf of the City, acknowledging that Mayor Reid received Mr. McCord's complaint on April 23, 2008; his plan "was to discuss the letter and the City's response at the next regular City Council meeting which was May 5, 2008." Mayor Reid "was not aware of his obligation to respond to the complaint within three (3) days pursuant to KRS 61.846[(1)]." As explained by Mr. Bathalter:
1. At the regular City Council meeting held on April 7, 2008 there was a general discussion about the fact that the Mayor and City Council had received several complaints about the conduct of Butler's Chief of Police, Ken Hale and Constable Louis S. McCord in the City limits of Butler.
2. The Mayor indicated that he thought the best course of action was to appoint a "Police Commissioner" from the members of Council and have him/her work with two or three other members of Council to investigate the Complaints and give the Police Chief more specific guidelines as to what the City expects of him.
3. The Mayor suggested that the Council reconvene to discuss the idea more fully on April 10, 2008.
4. The Mayor admits that if the April 10 meeting constituted a "special" meeting, there should have been a notice of the special meeting posted at least 24 hours in advance of the meeting and the notice should have included an agenda.
5. The Mayor and City Council will discuss at the June 2, 2008 regular monthly meeting all those matters which were discussed at the April 10, 2008 meeting. The three Council members who volunteered to be on the committee will be reappointed at that time. No other action was taken at the April 10, 2008 meeting.
Insofar as the meeting at issue was unquestionably a "special meeting, " as evidenced by prior decisions, the City was obligated to comply with KRS 61.823; to its credit, the City has both acknowledged the violation of KRS 61.846(1) and indicated a willingness to implement remedial measures in light of its failure to strictly observe the notice requirements codified at KRS 61.823.
As a threshold matter, the City violated the Open Meetings Act from a procedural standpoint insofar as the Mayor 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 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 consistently 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, Mr. McCord specifically challenges the City's failure to issue a written response upon receipt of his complaint in accordance with KRS 61.846(1). 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; 00-OMD-142; 97-OMD-43. Failure to provide any written response necessarily constitutes a violation of KRS 61.846(1); however, the City has acknowledged this error and the record is devoid of any reason to question the City's veracity or evidence of bad faith. In light of this determination, the remaining question is whether the City violated the Act in failing to strictly observe the requirements of KRS 61.823.
With regard to application of KRS 61.823, and KRS 61.823(3) and (4)(b) in particular, 02-OMD-11 and 03-OMD-197 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. See also 05-OMD-138, pp. 4-10. In construing KRS 61.820, pursuant to which all meetings of all public agencies in Kentucky, "and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public" and a "schedule of regular meetings shall be made available to the public," and its companion statute, KRS 61.823, relating to special meetings, the Attorney General has long recognized:
Under the Open Meetings Act there are only two kinds of meetings. Regular meetings are governed by the provisions of KRS 61.820 and special meetings are controlled by the provisions of KRS 61.823. If the public agency holds a meeting in addition to, outside of, or in place of the regular meeting schedule that meeting is a special meeting and the provisions of KRS 61.823 must be followed. Those provisions include requirements pertaining to the written notice and the agenda, the delivery of the notice, and the posting of the notice. Failure to follow all of these provisions constitutes a violation of the Open Meetings Act.
92-OMD-1840, p. 3; 02-OMD-11.
Based upon the overwhelming weight of legal authority, this office must conclude that the City violated the Open Meetings Act in admittedly failing to comply with the notice requirements codified at KRS 61.823 prior to holding a special meeting on April 10, 2008. More specifically, the City failed to provide a written notice consisting of the date, time, and place of the meeting as well as a sufficiently detailed agenda to provide fair notice to the public in violation of KRS 61.823(3), and violated KRS 61.823(4)(b) in failing to post such a notice at least 24 hours in advance of the meeting in a conspicuous place at both the building where the meeting was scheduled to take place and the building which houses the headquarters of the agency. Because the law is well-settled regarding application of these requirements and the City has acknowledged committing the alleged errors, further discussion is unwarranted; this appeal presents no reason to depart from the analysis contained in 02-OMD-11 relative to KRS 61.846(1) and KRS 61.823(3) and (4), the analysis contained in 03-OMD-197 relative to KRS 61.823(3) and (4), or the authorities upon which those decisions are premised.
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 Any such committee is a public agency within the meaning of KRS 61.805(2). See 07-OMD-196; 06-OMD-262; 04-OMD-148.
2 Although the City may be permitted to grant such relief, this office is not under KRS 61.846(2); rather, the Attorney General "cannot void actions taken or impose penalties for violations of the Open Meetings Act, only the circuit court can do that." 97-OMD-90, p. 4; KRS 61.848(6). In any event, no action was taken beyond appointing the members of the voluntary committee.