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 Glencoe City Council violated the Kentucky Open Meetings Act in failing to include an agenda in the statutorily required notice of its October 17, 2013, special meeting. 1 By letter directed to Mayor James Nantz on October 31, 2013, in his capacity as presiding officer, Michael Murphy alleged that the statutorily required notification for the October 17, 2013, special meeting of the City Council failed to comply with KRS 61.823(3); he included a copy of the notification in support of his position. 2 To remedy the alleged violation, he proposed that KRS 61.823(2), (3), and (4)(b), and other applicable statutes "be strictly applied ." (Original emphasis.) Mr. Murphy further asked that minutes of the City Council meetings accurately reflect "any actions where the city enters into an agreement with any party." Having received no response, Mr. Murphy initiated this appeal by letter dated November 15, 2013, noting that the City Council "posted the notice in the window of the building," 3 but "failed to include the most important part of the notice, the agenda, which tell[s] the public what item(s) that the city is considering or any actions that may be taken." The record on appeal establishes that the City Council violated KRS 61.823(3) and 61.846(1).
Upon receiving notification of Mr. Murphy's appeal from this office, City Attorney Alecia Gamm Hubbard responded on behalf of the City Council. Ms. Hubbard acknowledged that the City Council "omitted one requirement of the essential elements required in noticing a special meeting. The City Clerk included the date, time, and provided more than 24 hours['] notice of the special meeting. There was one omission from the notice, the agenda. " During a regular meeting prior to its October 17 special meeting, she continued, the City Council publicly addressed the reason for calling the special meeting. Nothing other than "the single-item agenda announced prior to the meeting" was discussed. "There was no secret meeting or ill intended." Ms. Hubbard noted that the City Clerk "has been advised to always include the agenda in a public notice for a special meeting. "
In construing KRS 61.820, 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 (emphasis added); 02-OMD-11. In applying this provision, 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 precise requirements for public agencies which must be fulfilled prior to conducting any 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), and (4) of this section." In filing his complaint/appeal, Mr. Murphy relied upon KRS 61.823(3), pursuant to which:
(3) 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.
(Emphasis added.) "The language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). KRS 61.823(4) requires the public agency to deliver written notice, consisting of the date, time, and place of the meeting and the agenda, to members of the public agency, and media organizations that have requested notification, at least 24 hours before the meeting is to occur. This notice may be "delivered personally, transmitted by facsimile machine, or mailed . . .," or sent via electronic mail per KRS 61.823(4)(b). In addition, the Act requires public agencies to post the written notice in a conspicuous place in the building where the meeting will take place, and in the building which houses the agency headquarters, at least 24 hours before the meeting. Public agencies must comply with all of these requirements.
Discussing the reason for the special meeting in advance does not relieve the agency of the obligation to comply with KRS 61.823(3). The City Council has acknowledged failing to comply with KRS 61.823(3) by omitting the agenda for the October 17 special meeting; accordingly, this office will not belabor the issue as the law is well-settled regarding application of these requirements. See 08-OMD-009 (". . . failure to include an agenda of the items to be discussed in the written notices of the upcoming special meetings . . . is inconsistent with the principle of 'maximiz[ing] notice of public meetings and actions,' and represents less than strict compliance with the letter of the law"); 02-OMD-11; 03-OMD-197; 05-OMD-138. Given the overwhelming weight of legal authority, this office concludes that the City Council violated the Open Meetings Act in admittedly failing to comply with all of the notice requirements codified at KRS 61.823 prior to holding a special meeting on October 17, 2013.
In addition, the City Council violated KRS 61.846(1) which, in relevant part, mandates:
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. . . .
In construing KRS 61.846(1), this office recognized that it "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.
As the record establishes, the Mayor/City Council did not respond upon receipt of Mr. Murphy's complaint which, in all particulars, complied with KRS 61.846(1). The City Council offered no explanation for this error in responding to Mr. Murphy's appeal. Based upon the foregoing, this office finds that the City Council violated KRS 61.823(3) in omitting the agenda from the statutorily required notification of its October 17 special meeting and violated KRS 61.846(1) in failing to issue a timely written response to Mr. Murphy's October 31 complaint.
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:
Michael MurphyJames NantzAlecia Gamm Hubbard
Footnotes
Footnotes
1 Although Mr. Murphy referenced the "special meetings of October 16th and 17th" in his complaint, he only included the agenda for the October 17 special meeting and he focused exclusively on the October 17 meeting in his appeal. In responding to Mr. Murphy's appeal, the City Council acknowledged omitting the agenda for "a special meeting." The analysis contained in this decision applies with equal force regardless of the meeting date.
2 The notification appears verbatim below:
Special Meeting will
Be held Thursday October 17th
At 7:30 P.M.
3 This office trusts, in light of this observation, that the City Council fully complied with KRS 61.823(4)(b), pursuant to which 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. . . ."