Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Campbell County Fiscal Court violated provisions of the Open Meetings Act in regard to the notice provided for its regular meeting on August 19, 2009, and its special meeting on September 2, 2009. For the reasons that follow, we find that the Fiscal Court has presented evidence sufficient to show that it complied with the Act.
In a complaint dated September 23, 2009, addressed to Campbell County Judge/Executive Steven E. Pendery, J. R. Roth alleged the following:
I personally attended the meeting in Newport for the public hearing and first reading [i.e., of a tax ordinance] on 8/19/2009 @ 5:00 pm. There was no notice on the door. This meeting was not held at the county seat of Alexandria and there was no notice of a meeting being held outside of the county seat in the newspaper of record as required by law. There was a notice in a cinti, oh paper. The first reading passed at this meeting.
I was also present 9/02/2009 at 4:00 pm in the county seat of Alexandria when another meeting was held and the second reading was passed. The regular time for this meeting is 7:00 pm. There was neither notice of this meeting on the courthouse door nor the paper of record either.
For these reason's [sic] I believe the action's [sic] of the Campbell County Fiscal Court were illegal and all action's [sic] including the tax increases should be declared null and void.
A response from County Administrator Robert Horine on September 28, 2009, stated simply: "The matter has been reviewed and a determination made that the complaint issues are without merit." 1 This office received Mr. Roth's appeal on October 2, 2009.
In his appeal, Mr. Roth states the following:
NO ADVERTIS[E]MENT OR NOTICE'S [sic] IN CAMPBELL CO RECORDER? OF PUBLIC HEARING, MAYOR'S MEETING, SPECIAL MEETING @ 4:00, AND NO POSTED [sic] ON DOOR EITHER
The Fiscal Court's response to the appeal was submitted on October 6, 2009, by Campbell County Attorney James A. Daley. As to the meeting on August 19, 2009, he states: "This was a regularly scheduled meeting of the Fiscal Court and was held at the regularly scheduled time, date and location." He indicates that the Fiscal Court complied with KRS 61.820 as to notice of the schedule for regular meetings, referring to a 2007 Fiscal Court resolution scheduling
two meetings per month, with the first meeting of the month being on the first Wednesday at 7:00 p.m. at the Campbell County Court House in Alexandria and the second meeting of the month being on the third Wednesday at 5:30 p.m. in the Conference Room at the Campbell County Fiscal Court Administrative Offices in Newport.
Mr. Daley adds: "This particular meeting was advertised on August 7th and 10th for purposes of a public hearing to be held concerning the County setting its' [sic] tax rate." The advertisement indicated that the public hearing was to be conducted at 5:15 p.m., immediately prior to the regular meeting at 5:30 p.m.
As to the September 2, 2009, meeting, Mr. Daley states that "[t]his meeting became a 'special meeting' by virtue of the Fiscal Court having to change the time of the meeting from the normal 7:00 P.M. to 4:00 P.M." due to a conflict with a county fair parade. He gives an account of the Fiscal Court's compliance with KRS 61.823(3) and (4) as to notice of special meetings:
The Fiscal Court, contrary to the unsubstantiated claims of Mr. Roth, did provide 'written notice of the special meeting. ' The written notice did in fact provide the 'date, time and place of the special meeting. ' And, finally, the agenda for the meeting was provided with notice to the media. Attached hereto are copies of the Affidavit(s) of Publication, fax sheets showing the items provided to the media, a copy of the agenda provided to the media, and three (3) copies of fax sheets showing successful transmission of this information to the various media outlets that have requested notice. These items also clearly depict that the notice provided was well in excess of the required twenty-four (24) hours prior to the special meeting.
Mr. Daley further provides affidavits testifying that the notice and agenda for the September 2 special meeting were posted on the courthouse door in Alexandria and at the Fiscal Court's headquarters in Newport on the morning of September 1, 2009, in fulfillment of KRS 61.823(4)(c)'s mandate that written notice be "posted in a conspicuous place in the building where the special meeting will take place and ? the building which houses the headquarters of the agency."
Mr. Roth's allegations are contrary to Mr. Daley's evidence in certain respects. While this office does not generally act as a finder of fact in the case of disputed factual questions, we believe the evidence presented by Mr. Daley is certainly sufficient to support a finding that the Fiscal Court complied with KRS 61.823 as to the special meeting on September 2, 2009. Mr. Roth's implication that the Open Meetings Act requires a public agency to advertise special meetings in the local newspaper of record is incorrect, even though other provisions of law may contain such requirements. See generally 04-OMD-230 (Open Meetings Act does not incorporate notice provisions from any other statutes).
Similarly, the evidence is sufficient to show that the Fiscal Court complied with the notice requirements of KRS 61.820 as to its regular meeting on August 19, 2009. The regular meeting was held at the time and place indicated on the published schedule. There is no requirement under the Open Meetings Act for fiscal court meetings to be held at the county seat or other centers of government. 99-OMD-213. Nor does any notice have to be posted for a regular meeting that follows the published schedule as to time and place. Cf. 92-OMD-1677, p. 2 ("The public has the right to expect a public agency ? to follow its regular meeting schedule or to call special meetings following the required notice, delivery, and posting provisions...."). For these reasons, we do not find that a violation of the Open Meetings Act occurred in connection with the Fiscal Court's regular meeting on August 19, 2009, or its special meeting on September 2, 2009. 2
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 KRS 61.846(1) requires that a public agency's response to a complaint "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." Although we realize that in this case the main point of the response was simply a denial of the factual allegations in the complaint, the Fiscal Court's response could have included a reference to KRS 61.823 and explained how the agency complied with it. Its failure to do so constituted a procedural deficiency in the response pursuant to KRS 61.846(1).
2 Mr. Roth does not specifically complain of the fact that the Fiscal Court met at 5:15 p.m. on August 19, immediately prior to its 5:30 regular meeting, to hold a public hearing; nor does Mr. Daley's response to this appeal address the application of KRS 61.823 to this public hearing. Accordingly, as the issue has not been raised, we do not consider the open-meetings implications of the public hearing.