Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Danville City Commission violated the Kentucky Open Meetings Act in "fail[ing to] use KRS 446.030 in the calculation of the open meeting notification required by KRS 61.823(4)(a) for the Danville City Commission meeting" held on June 29, 2011, an issue of first impression. KRS 61.823(4) establishes the minimal requirement for giving notice of special meetings in expressly requiring that written notice be given "[a]s soon as possible," but "shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. " 1 Because KRS 61.823(4) is the more specific of these statutory provisions, it prevails over KRS 446.030(1)(b), a general statutory provision which, in relevant part, mandates that ""[w]hen a statute, regulation, or order of court requires an act to be done either a certain time before an event or a certain time before the day on which an event occurs, the day of the event shall be excluded in computing the time," but only applies when there is "no other applicable statutory [time frame]." 10-ORD-010, p. 3. Compare 11-ORD-004 (applying KRS 446.030 to exclude the day when a public agency receives a request from the three day response time of KRS 61.880(1) ). It is axiomatic that where two statutes address the same subject, "the specific shall prevail over the general."
City of Bowling Green v. Board of Education of Bowling Green, 443 S.W.2d 243, 247 (Ky. 1969). Accordingly, the City's position that "the more specific provision, KRS 61.823, controls," is entirely valid.
By letter directed to Mayor Bernie Hunstad on July 11, 2011, Buck Graham submitted a complaint relating to a special meeting of the Danville City Commission held on June 29, 2011. He acknowledged that a "meeting notice was sent and received by email at approximately [8:00 a.m. on June 28, 2011]." Citing KRS 446.030(1)(b), Mr. Graham asserted that "[i]n order for the notification to have been legal, it would have to have been received by 0000 (midnight) [on June 28, 2011]." To remedy this perceived violation of the Open Meetings Act, Mr. Graham proposed that the Commission "discuss and adopt changes to Danville's Open Meeting[s] ordinance to allow use of electronic mail as a method to notify the media of future City Commission meetings." Mr. Graham further proposed "an ordinance to require that notice of special called meetings be placed on the City's website 24 hours in advance of [such meetings]," and, finally, "that all ordinances being discussed (1st or 2nd reading) at open meetings be available on the City website for download by the public 24 hours in advance of the meetings."
In a timely written response, City Clerk Donna Peek advised Mr. Graham that "KRS 61.823 requires that certain media organizations receive 24 hours['] notice of special-called meetings of the City Commission. Those media organizations were provided 24 hours['] notice of the June 29th special-called meeting of the [Commission], and it is my understanding that all or most of them have acknowledged receipt of such notice. " Regarding his allegation that KRS 446.030 requires more than 24 hours of notice, Ms. Peek advised, the Commission does "not believe that KRS 446.030 applies to extend the notice requirement and, at first glance, it appears that there are no annotations of court cases or Kentucky Attorney General opinions decided under KRS 61.823 or KRS 446.030 that address the issue." Ms. Peek further indicated that the City intended "to conduct further research with the goal of supplementing this response, if that research warrants, within 7 days." Regardless of how this issue was resolved, however, Ms. Peek advised that Mr. Graham's three requests "merit further consideration," and she planned to ask "that they be added as an agenda item for the July 25th City Commission meeting."
On August 2, 2011, H. Vincent Pennington, III, legal counsel for the City, supplemented Ms. Peek's response on behalf of the City Commission "to follow-up on the discussion that took place at the Danville City Commission meeting on July 25, 2011." Having again reviewed KRS 61.823, KRS 446.030, and relevant Attorney General Opinions/Decisions, Mr. Pennington advised Mr. Graham that he "found no authority at all that supports the proposition that KRS 446.030 operates to extend the notice requirements of KRS 61.823 as you contend in your" complaint. "This appears to be a matter of first impression," Mr. Pennington correctly observed. 2 However, the City's position "is that KRS 61.823(4)(a) is a specific, literal statute and that a public agency satisfies its notice requirement for special meetings by giving notice 'calculated so that it shall be received at least twenty-four (24) hours before the special meeting' - no more, no less." In sum, the City believes "that the more specific statute, KRS 61.823 , controls." Having conducted independent research, which revealed no existing legal authority to refute this interpretation, and carefully reviewed the literal language of KRS 61.823(4) and KRS 446.030, in light of general principles of statutory construction, this office agrees.
By letter dated August 16, 2011, Mr. Graham initiated this appeal from the denial of his complaint, which, as he said, "calls out that the City failed [to] use KRS 446.030 in the calculation of the open meeting notification required by KRS 61.823(4)(a) for the Danville City Commission meeting held on" June 29, 2011. Mr. Graham noted that Section 1-2 of the City of Danville Code of Ordinances, entitled "Definitions and rules of construction," provides that "[w]henever a notice is required to be given or an act to be done, the rules for computation of time as set forth in KRS 446.030 shall apply." 3 Upon receiving notification of Mr. Graham's appeal from this office, Mr. Pennington supplemented his response on behalf of the City Commission, noting that Mr. Graham does not dispute that the City Clerk distributed notice of the June 29 special meeting at least 24 hours in advance per KRS 61.823(4)(a); rather, he contends that in calculating the 24 hours, "one must exclude the hours of the day of the event pursuant to KRS 446.030." Mr. Pennington then persuasively elaborated upon the City's position as follows:
It is my belief that public agencies throughout the Commonwealth of Kentucky understand that KRS 61.823(4)(a) is a literal statute and that the advance notice required by that statute is a literal twenty-four hours that is not altered or extended by virtue of the application of KRS 446.030. Indeed, as I mentioned in my reply to Mr. Graham dated August 2, 2011, a representative of [KLC] has indicated that she has reviewed approximately forty-one Kentucky Attorney General Opinions that reference KRS 446.030 (as well as a number of court cases) and that none of those opinions or court decisions suggests that KRS 446.030 is a relevant consideration in determining whether a public agency meets its notice requirements under KRS 61.823(4)(a). . . . I am not aware of any authority for the proposition that KRS 446.030 alters the specific, literal requirements of KRS 61.823.
KRS 446.030 is a statute of general application relating to the calculation of time, and there is ample precedent in Kentucky law that supports the idea that a statute of general application must yield to a more specific statute. See, for instance, Pinson v. Bentley, 161 S.W.2d 305 (Ky. 1943).
I acknowledge Mr. Graham's point that Section 1-2 of the City of Danville Code of Ordinances . . . does contain a reference to KRS 446.030 in its definition of "computation of time." This does not, in my opinion, change the City's legal position, as outlined in my correspondence to Mr. Graham dated August 2, 2011, nor does it change the proper outcome of this matter. Section 1-2 begins with the following caveat: "In the construction of this Code, and of all ordinances, the following terms and words are hereby defined, unless such definition would be inconsistent with the manifest intention of the ordinances, the legislative intent, or unless the context clearly indicates otherwise . . . ." (Emphasis supplied). I do not believe that the [City Commission], in adopting Section 1-2 of its Code of Ordinances, intended in any way to make more stringent the state law requirements of KRS 61.823.
In reply, Mr. Graham first reiterated his belief that KRS 61.823(4)(a) "does not require a literal 24 hour notice as Mr. Pennington suggests." Mr. Graham emphasized the prefatory language, "As soon as possible," in support of this contention. Secondly, Mr. Graham asserted that "because KRS 61.823 is a statute and because KRS 61.823 requires a notification action to be done 24 hours in advance of the special meeting event, it follows that KRS 446.030 MUST be used in the calculation of notice delivery." He used a hypothetical scenario wherein a public agency could theoretically provide notice on a Sunday in the event a legal holiday fell on a Monday under the City Commission's interpretation of KRS 61.823, thereby depriving the public of proper notice, to illustrate his point. 4 Although the City Commission disagrees with Mr. Graham's legal conclusion and maintains that it did not violate the provisions of the Open Meetings Act, it has acknowledged in reference to his proposed remedies, "that his suggestions are good ones." Accordingly, the City Commission has "already adopted an ordinance to allow use of electronic mail as a method to notify media organizations of future [C]ity [C]omission meetings," 5 and has "begun posting notices of special-called meetings and proposed ordinances on the City's website at least twenty-four hours in advance of a meeting, although the posting of such documents on the City's website is not required by law." For all of the reasons correctly and persuasively outlined in the City's initial and supplemental responses, the Attorney General finds no basis to conclude that the City Commission violated the Open Meetings Act in the manner alleged.
As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing
Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In discharging this duty, the Attorney General is not at liberty to add or subtract from the legislative enactment or "discover meaning not reasonably ascertainable from the language used." Id . Rather, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not expressed.
Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997); see also KRS 446.080(4). "[I]t 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, 70 S.W.3d 411, 413 (Ky. 2002), citing
Gateway Construction Company v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). When viewed in light of these fundamental principles, the literal and mandatory language of KRS 61.823(4), requiring no less, but no more than 24 hours' notice of a special meeting, controls over KRS 446.030, a statute of general application.
In applying KRS 61.823, the Kentucky Supreme Court has recognized that "the failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good," and the "express purpose" of the Open Meetings Act is "to maximize notice of public meetings and actions."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997), citing
E.W. Scripps Co. v. City of Maysville, 750 S.W.2d 450 (Ky. App. 1990). In Scripps , the Kentucky Court of Appeals likewise 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. " Id. at 452. To promote this goal, the Open Meetings Act establishes specific requirements for public agencies which must be fulfilled prior to conducting a special meeting. Specifically, KRS 61.823(1) provides that "[e]xcept as provided in subsection (5) of this subsection [which is inapplicable], special meetings shall be held in accordance with the provisions of subsections (2)[the presiding officer or a majority of the members may call a special meeting] , (3)[public agency shall provide written notice consisting of date, time, and place of special meeting and the agenda] , and (4) of this section." This office has consistently recognized that failure to follow all of these provisions constitutes a violation of the Open Meetings Act. 92-OMD-1840, p. 3; 10-OMD-168.
In filing his complaint/appeal, Mr. Graham relied upon KRS 61.823(4)(a), pursuant to which:
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. . . .
As indicated at note 1, KRS 61.823(4)(c), requiring that "As soon as possible, written notice shall also be posted in a conspicuous place . . ." also contains the qualifying language at the center of this dispute, "at least twenty-four (24) hours before the special meeting. " Resolution of this appeal specifically turns on the interplay between KRS 61.823(4)(a) and KRS 446.030(1)(b) which, in relevant part, mandates that "[w]hen a statute, regulation, or order of court requires an act to be done either a certain time before an event or a certain time before the day on which an event occurs, the day of the event shall be excluded in computing the time."
Neither party was able to locate, nor has independent research by this office revealed, any prior decision that is directly on point; however, the literal language of KRS 61.823(4) speaks for itself, particularly when viewed in light of the general principles of statutory construction referenced above. In addition, the logical inferences that can be drawn from existing legal authority further validate our holding. Specifically, this office recently noted in resolving a dispute arising under the Open Records Act that, "on several occasions, the Attorney General has applied the 'computation of time' provision found at KRS 446.030 to exclude from the three day response time [codified at KRS 61.880(1), a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply . . . and shall notify in writing the person making the request, within the three (3) day period, of its decision"] the day on which the request reaches the agency. See, e.g., 96-ORD-207; 10-ORD-010." 11-ORD-004, p. 2. Likewise, the Attorney General has applied the general rule of computation codified at KRS 446.030(1)(a) in determining whether a public agency complied with KRS 61.846(1) under the Open Meetings Act, which, in relevant part (three business days for a written response), mirror its counterpart under the Open Records Act, KRS 61.880(1). 04-OMD-199, p. 5.
The critical distinction between these decisions and the facts presented here is that neither KRS 61.880(1) nor KRS 61.846(1) expressly indicates when time begins to run for purposes of calculating whether a response is timely whereas KRS 61.823(4) explicitly defines the minimal notice that must be given prior to a special meeting - "at least twenty-four (24) hours." In short, KRS 446.030 only applies in the absence of a more specific statutory directive such as that found in KRS 61.823(4). Accord, 10-ORD-010 (recognizing that "KRS 61.880(1) is a general [statutory provision] that only applies where there is no other applicable statutory deadline for agency response" whereas KRS 197.025(7) is a specific statutory provision establishing the deadline by which the [Department of Corrections] and facilities [under its jurisdiction] must respond to open records requests"). To hold otherwise would contravene not only fundamental principles of statutory construction but also the legislative intent expressed by the unambiguous language of KRS 61.823(4). Had the General Assembly intended for public agencies to provide forty-eight (48) hours of notice prior to a special meeting, as Mr. Graham's interpretation of KRS 61.823(4) would essentially require, or any notice greater than 24 hours, it would have altered the literal and specific language of that provision to reflect as much. Mr. Graham does not dispute that proper notice was provided or that it was actually received at least 24 hours before the City Commission's June 29 special meeting; nothing else was required.
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.
Distributed to:
Buck GrahamDonna PeekH. Vincent Pennington, III
Footnotes
Footnotes
1 Similarly, KRS 61.823(4)(c) provides that "[a]s 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, like that required under 61.823(4)(a), "shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting. "
2 To obtain "an independent perspective," Mr. Pennington further explained, the City "asked the legal department at the Kentucky League of Cities to look into the matter." A representative thereof advised Mr. Pennington that she reviewed "the 41 Kentucky Attorney General Opinions that reference KRS 446.030 and that none of them addresses the notice requirements for special meetings."
3 Contrary to Mr. Graham's implicit assertion, the parallel between the City's ordinance and KRS 446.030 undermines rather than validates his position. In OAG 99-10, this office recognized that KRS 82.082, commonly known as The Home Rule Statute, "delegates to cities the broad power to govern, but it also bars cities from legislating in certain areas. Specifically, the General Assembly prohibits a city from enacting an ordinance that is expressly prohibited by statute." Id., p. 2. Said another way, "an ordinance enacted pursuant to a state cannot violate the statutory law of the state. That municipal ordinances stand inferior to, and are subordinate to the laws of the state, is a basic principle." City of Owensboro v. Board of Trustees, City of Owensboro Employees Pension Fund, 301 Ky. 113, 190 S.W.2d 1005, 1008 (1945). Accordingly, this office has recognized that '[j]ust as a local agency cannot, by ordinance or other device, regulate access to records in a manner which conflicts with the Open Records Law,' so too a local agency cannot regulate public meetings in a manner which conflicts with the Open Meetings Law." 03-OMD-187, p. 9; 09-OMD-169. See also 01-ORD-163. Like Mr. Pennington, whose response is quoted below, this office does not believe that the City Commission "in adopting Section 1-2 of its Code of Ordinances, intended in any way to make more stringent the state law requirements of KRS 61.823."
4 Because such facts do not exist here, and this office is not permitted to speculate regarding the hypothetical scenarios, but must rule on existing disputes only, the Attorney General must leave for another day the question of how notice must be calculated to comply with KRS 61.823(4) under this unlikely circumstance. Accord, 05-ORD-095.
5 This ordinance would be consistent with KRS 61.823, amended in 2008 to provide at subsection (b) that a public agency may "satisfy the requirements of paragraph (a) of this subsection by transmitting the written notice by electronic mail to public agency members and media organizations that have filed a written request with the public agency indicating their preference . . . ."