Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Spencer County Board of Elections violated KRS 61.823 prior to its December 19, 2013, rescheduled regular meeting by failing to observe the requirements for a special meeting. The Board acknowledged a similar violation in an appeal resulting from its denial of an open meetings complaint relating to a rescheduled regular meeting conducted on November 19, 2013. Thus, in 14-OMD-009 the Attorney General held that the Board's November 19 meeting deviated from its regular meeting schedule and "should have been treated as a special meeting, " concluding that the alleged "violations occurred." 14-OMD-009, p. 1. That decision, which mirrored earlier decisions of this office, 1 is dispositive of the complainant's allegations concerning violation of KRS 61.823.
In addition to allegations concerning the Board's failure to provide written notice of the December 19 special meeting, including an agenda to which it strictly adhered, the complainant, Lawrence Trageser, also alleged that the Board failed to create minutes of the special meeting. Additionally, Mr. Trageser alleged that the Board failed to notify board members and the media of the special meeting "by hand-delivered notice, facsimile, or by U.S. Mail" or, alternatively, that it failed to obtain "documented agreements to use email with board members and/or media as an alternative notification method." With regard to the latter allegation, the Board asserted that it has obtained "a signed letter of agreement with The Spencer Magnet to notify them of meeting by email, " and that it did so, but failed to respond to the remaining allegations. 2
KRS 61.835 requires public agencies to promptly record "[t]he minutes of action taken at every meeting . . . setting forth an accurate record of votes and actions taken." The failure to record minutes constitutes a violation of the Open Meetings Act. So, too, does transmission of notice of special meetings by any mode of delivery other than U.S. Mail, facsimile, or hand-delivery unless the agency transmitting special meeting notice has obtained a written request from the agency member and/or media organization to which notice is directed "indicating their preference to receive electronic mail notification in lieu of notice by personal delivery, facsimile machine, or mail" that includes the agency member's or media organization's email address. KRS 61.823(4)(b). If, in fact, the Spencer County Board of Elections failed to record minutes of its December 19 meeting, and transmitted meeting notices other than by the statutorily recognized modes of delivery, it also violated KRS 61.835 and KRS61.823(4)(a) and (b). It is incumbent on the Board to respond to these allegations, citing legal authority that supports its position, or acknowledge these violations and implement the remedial measures Mr. Trageser proposed. 3
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:
Lawrence TrageserLynn HesselbrockRuth A. Hollan
Footnotes
Footnotes