Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Michael Murphy initiated this appeal per KRS 61.846(2) challenging the disposition by the Glencoe City Council of his November 25, 2015, written complaint, directed to Mayor Michael Hampton per KRS 61.846(1), alleging it failed to comply with requirements for special meetings codified at KRS 61.823(2) , (3), and (4)(a) and (b) prior to its November 23, 2015, special meeting, i.e. , public hearing. "While the City of Glencoe has the right under the Kentucky Revised Statutes to hold a public hearing, " Mr. Murphy observed, "I believe you as the Mayor and city council violated the provisions of KRS 61.823 special meetings [sic], by having a quorum KRS [83A.060(6)] of the legislative body present during the public hearing and call for a vote to change the zone classification for 114 North Main Street." Specifically, Mr. Murphy complained that "[t]here was nothing in the legal AD notifying the public that the city was going to take action on the zone change. " To remedy this alleged violation, Mr. Murphy proposed that the City Council "strictly comply with the provisions of KRS 61.823" and requested that "[a]ll actions [and/or] votes taken during the Public Hearing of November 23, 2015 shall become null and void. " Mr. Murphy also proposed that a "stop work order be placed on the property located at 114 North Main Street," until a legal decision is rendered.
City Attorney Alecia Gamm Norman received Mr. Murphy's complaint (postmarked November 27, 2015) on November 30, 2015, and issued a timely written response per KRS 61.846(1), that day. "Because the public hearing notice did not include the specific language that the City Council of Glencoe would be voting on the zone change on November 23, 2015," Ms. Norman indicated that she would "advise the City Council to declare the vote to rezone 114 North Main Street as null and void. As such, there will not be construction on 114 North Main Street because Mr. Winslow has not issued a permit for work to take place." The City Council will be voting at the next regular meeting, she advised, "unless they [choose] to call a special meeting before that time." If the City Council decides to call a special meeting, "the agenda will clearly state that two actions will be taking place, namely an action to declare the November 23, 2015 vote null and void, in addition to a vote to rezone 114 North Main Street." In his December 4, 2015, appeal Mr. Murphy acknowledged that Ms. Norman had agreed to implement some of his proposed remedies but "failed to mention complying with the provisions of KRS 61.823(2) , (3), and [(4)(a) and (b) regarding special meetings] in the future." Mr. Murphy believed that "the actions of the mayor and city council only caused more confusion since no one understands or comprehend[s] the [requirements] of a public hearing [and/or] [s]pecial [m]eetings." Accordingly, he asked that the City Council "fully complies with the provision[s] of KRS 61.823 in conducting a special meeting, and invalidates the public hearing that was held on November 23, 2015."
Upon receiving notification of Mr. Murphy's appeal from this office, Ms. Norman advised that "[i]t is the City of Glencoe's position that KRS 61.823(2), (3), and (4)(a)(b), be strictly adhered to now and in the future." 1 Ms. Norman also reiterated that she was advising the City Council to render the vote taken during the November 23, 2015, public hearing null and void at its next regular meeting scheduled for December 14, 2015. However, the public notice "did clearly state that the hearing was taking place, stated with specificity the issue to be heard, and listed the date, time and place of the meeting. There was no confusion that the public hearing was taking place and the issue to be considered." 2 Accordingly, the City Council declined to void the public meeting. Ms. Norman argued that the vote which occurred "is a separate matter. In fact, it is so distinguishable, that it should have been listed in the agenda. " Because it was not listed, Ms. Norman advised the City Council to void the vote.
Inasmuch as the role of this office in adjudicating a dispute arising under the Open Meetings Act is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," the Attorney General declines to comment on the remedies proposed or implemented. 08-OMD-164, p. 2; 11-OMD-162. In addition, the Attorney General "is not charged with the duty to interpret and enforce the requirements for legal notices codified in KRS Chapter 424, and in particular KRS 424.130, [or any other chapter of KRS] in an open meetings appeal." 00-OMD-65, p. 3. Where, however, a quorum of the members of a public agency meet to discuss public business or take action, which results in a complaint relating to how that meeting was conducted, KRS 61.846(2) mandates that "the Attorney General shall review the complaint [and the agency's response thereto] and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." Id., pp. 3-4.
Regular meetings are governed by KRS 61.820, and special meetings are controlled by 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." 92-OMD-1840, p. 3. "Failure to follow all of these provisions constitutes a violation of the Open Meetings Act. " Id. 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). Accordingly, the precise requirements codified at KRS 61.823 must be fulfilled prior to conducting any special meeting, which the City Council's November 23, 2015, public hearing, by definition, was.
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), (3), and (4) of this section." Pursuant to KRS 61.823(2), "[t]he presiding officer or a majority of the members of the public agency may call a special meeting. " The public agency must also 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. KSR 61.823(4)(a). 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 headquarters of the agency, at least 24 hours before the meeting. KRS 61.823(4)(c). In filing his complaint/appeal, Mr. Murphy cited KRS 61.823(2), (3), and (4)(a) and (b). 3 Aside from a general reference to subsections (2) and (4), however, the record on appeal is devoid of any facts or evidence regarding the City Council's compliance, or lack thereof with either of those provisions. 4 Thus, our analysis will also focus on whether the agency complied with KRS 61.823(3), particularly in light of its ultimate acknowledgement that strict compliance with all of the statutory notice requirements codified at KRS 61.823(2), (3), and (4) is mandatory.
Pursuant to KRS 61.823(3), "[t]he 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. The City Council's failure to include any reference to a "special meeting" or "agenda" on the public notice provided was inconsistent with KRS 61.823(3). If the City Council failed to comply with any of the other statutory requirements, it also violated the Open Meetings Act to that extent. As indicated, the public notice of the City Council's November 23, 2015, public hearing/ special meeting included the date, time and place of the special meeting, and the agenda, though it was not so characterized. Mr. Murphy alleged that omission of the vote to rezone the subject property rendered the agenda deficient.
In 01-OMD-175, the Attorney General was first asked to determine if special meeting agenda items that included "discussion of old business, " "discussion of new business, " "open to floor," and "open to counsel," were adequately specific to satisfy the requirements of KRS 61.823(3). The Attorney General concluded that the language of that provision, coupled with the statement of legislative policy codified at KRS 61.800, and the Kentucky Supreme Court's declaration that "[t]he express purpose of the Open Meetings Act is to maximize notice of public meetings and actions," mandated "special meeting agendas that give fair notice of the particular topics to be discussed or acted upon." 01-OMD-175, p. 1, citing Floyd County Board of Education at 923. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as old business, ' 'new business, ' 'open to floor,' and 'open to council.'" Id.
In 02-OMD-22, an item listed on the agenda for a special meeting described as "Board and Presidential Leadership ad hoc Committee report" was challenged on the basis that it was not "sufficiently specific to ensure fair notice to the public that a vote on extension of the President's contract would be conducted." This office held that "the [agency] might have employed more specific language in describing the contemplated action, namely the vote on extending the President's contract, in the meeting agenda, " but was "not prepared to say that the agenda item was so vaguely worded that fair notice could not be imputed to the public. Certainly, it cannot be equated with such vague descriptions as 'old business, ' and 'new business. '" Id., p. 7. Critical to our analysis there was the fact that the ad hoc committee only had one charge, to "'make recommendations to the [agency] concerning [the president's] contract, [and] it was apparent that action would be taken on the contract upon receipt of the committee's report.'" The City Council indisputably has more than one charge, but only a sole topic, namely the possible rezoning of 114 North Main Street, was listed on the public notice. See 13-OMD-005; compare 03-OMD-149; 10-OMD-017; 12-OMD-146. Fair notice to the public that a vote on the rezoning issue might logically follow the discussion of that narrow subject could reasonably be imputed. Under the circumstances presented, the City Council did not violate KRS 61.823(3) in this regard.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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 In his December 17, 2015, reply letter, received after this decision had already been submitted for internal review, Mr. Murphy expressed concern regarding the City Council's position based on the City Council's "repeated" violations of KRS 61.823 in the past, citing 13-OMD-203 and 14-OMD-165. However, this office ruled on the prior allegations in those decisions and is not permitted to prospectively address the possibility of any future violations here.
2 Attached to Mr. Murphy's December 4, 2015, appeal is a copy of the "Public Notice" which appeared in the Gallatin County News on both November 11 and November 18, 2015, which provided:
A zone change hearing for 114 North Main in Glencoe will be held at the Glencoe City Building at 7 p.m., Monday, November 23. The city is considering rezoning the property from R1 to R3.
3 In both Mr. Murphy's original written complaint and his letter of appeal, he focused exclusively on the City Council's failure to specifically mention the planned vote regarding the proposed rezoning of 114 North Main Street in the public notice of the November 23, 2015, "public hearing," i.e. , special meeting.
4 See 14-OMD-240, pp. 6-7, for discussion of KRS 61.823(2) and (4)(a) and (b).