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 Spencer County Levee Flood Control and Drainage District # 1 ("District") violated the Open Meetings Act on two occasions when it met without notice to the public. We find that the District has been generally out of compliance with the Act and specifically on the two occasions complained of.
By letter dated October 5, 2013, Lawrence Trageser submitted a written complaint to Flood Levee Commission Chairman Mike Driscoll in which he alleged:
Petitioner represents, that the Flood Levee Commission has met in the local Spencer Magnet Newspaper office with at least a quorum and or full commission body, as well as attending a meeting in Frankfort, for the purpose of discussing business related to the Flood Levee Commission.
Petitioner alleges, that the commission has failed to post notification of either Special Meeting. Failed to post a specific agenda required for either Special Meeting. Failed to record minutes for either Special Meeting.
Petitioner seeks the following relief, the Flood Levee Commission should have and follow a current copy of the Open Records Act and Open Meetings Act. The commission should adopt a regular meeting schedule and have the schedule available to the public to include an address for correspondence with the commission. The commission should cease and desist engaging in illegal meetings, provide Special Meeting agendas, follow Special Meeting agendas, record minutes of Special Meetings, and post notification of all Special Meetings to be held by the commission.
Mr. Trageser states that he hand-delivered the letter on October 7, 2013.
By letter dated October 11, 2013, Drainage Commissioner Robert Smith responded on behalf of the District. He stated:
Your complaint has been received and this is our reply.
We have nothing to hide and plan to perform our duties in full view of all.
Attached is our letter to the Attorney General's Office, sent prior to your written complaint.
No written reply has been received; however, we have taken the following action to remove any doubt of our intent.
We have authorized a Committee to handle education and negotiating contractor interviews to eliminate potential for a quorum.
The motion was made to the board and is as follows, that we create an education and negotiating committee consisting of the president, treasurer, and one or more property owners to attend meetings for educational, funding and interviewing potential sub contractors.
The letter to which Mr. Smith referred was dated October 4, 2013, and addressed to Assistant Attorney General Amye L. Bensenhaver. It stated in part:
The Levee Commission consists of three elected drainage commissioners, one elected secretary and an appointed treasurer. These concerns call for educational efforts from the Levee Commission. Therefore, the 3 elected officials and the treasurer went to a facts on the table meeting in Frankfort, held by the Division of Water. FEMA, USACE, Division of INS, KIPDA, Salt River Electric, Division of Insurance and others attended to help educate members of the commission on the issues and consequences of failure to act to reaccredit our levee.
Myself, and the other elected commission[er]s, along with the treasurer that attended the meeting in Frankfort, then decided to go to our local newspaper, The Spencer Magnet, in hopes of spreading and creating an interest by publishing an article to help educate the citizens. The Spencer Magnet agreed and followed through by doing just that. I had read ? KRS 61.810 and concluded that educational meetings were not prohibited[:] "Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues." That being said, during both events, the secretary was not present as it was not considered an official meeting and no official business was conducted; only educational efforts were addressed?
If our educational efforts must be conducted in regular meetings or a special called meeting, we will do so, as we want to abide by the laws. Apart [ sic ] of the educational process is ongoing and most of the time determined from schedules set by the other parties. My question is whether the levee commission violated the open meeting law by participating in these two meetings?
We note that the October 11 response occurred one day past the three-day statutory deadline pursuant to KRS 61.846(1).
Mr. Trageser initiated this appeal to the Attorney General on October 16, 2013. He disagreed with the argument that the meetings were "educational" in nature and noted that the proposal to create a committee in the commissioner's October 11 letter was unsatisfactory because such a committee, "established, created, and controlled" by a public agency, would itself be a public agency under KRS 61.805(2)(g). See 10-OMD-146. In response to the appeal, Commissioner Smith made no further denial of the District's failure to comply with the Open Meetings Act , but stated as follows:
The Spencer County Kentucky Levee Flood Control & Drainage District # 1 will follow the current open records act and open meetings act. The commission will adopt a regular meeting schedule and will have the schedule available to the public.
?
The commission will not knowingly hold illegal meetings. They will provide an agenda for all meetings and record minutes of the same. They will post notification of all meetings.
It appears from the responses made by the District that it has a history, including but not necessarily limited to the two meetings at issue in the appeal, of generalized failure to comply with the provisions of the Open Meetings Act. This includes not only the requirements to give public notice and post the agenda for special meetings under KRS 61.823, but also the requirements to adopt a regular meeting schedule and to keep minutes of all meetings. KRS 61.820; KRS 61.835. At the same time, it appears that this noncompliance is chiefly the result of ignorance and that the District intends to make earnest efforts to comply with the Act in the future.
KRS 61.810(1) provides that "[a]ll meetings of a quorum of the members of any public agency at which any 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," except as otherwise provided. We recognize that any or all members of a public agency may avail themselves of educational opportunities without violating the Open Meetings Act, provided they do not take action 1 or discuss the public business of the agency on those occasions. Accord,
Elm Street/McCracken Pike Preservation Alliance, Inc. v. Siegelman, 2007 WL 3228090, No. 2005-CA-002079-MR (Ky. App., Nov. 2, 2007) (unpublished decision).
At the two meetings in question, it is undisputed that a quorum was present on each occasion. Therefore, to the extent the members may have discussed the public business of the District, the meetings were within the scope of the Open Meetings Act as described in KRS 61.810(1).
Accordingly, insofar as public business was discussed on these occasions, we find that the Spencer County Levee Flood Control and Drainage District # 1 failed to comply with the requirements of the Open Meetings Act as to the two meetings at issue in this appeal. In addition, the District committed a procedural violation by responding to Mr. Trageser's complaint one day later than the time allotted by KRS 61.846(1) . We trust that the District will take advantage of educational opportunities to assist in its efforts to bring its future meetings into compliance.
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:
Mr. Lawrence TrageserMr. Robert Smith
Footnotes
Footnotes
1 Action taken" is defined by KRS 61.805(3) as "a collective decision, a commitment or promise to make a positive or negative decision,, or an actual vote by a majority of the members of the governmental body."