Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky State Committee of Blind Vendors ("SCBV") violated the Open Meetings Act in not responding to a complaint within three business days, and in not complying with special meeting procedures. We find that SCBV violated the Open Meetings Act in not responding to a complaint within three business days, and in not complying with special meeting procedures.
On March 5, 2018, Patrick B. Shirley, of the Education and Workforce Development Cabinet, submitted an open meetings complaint to SCBV. Shirley alleged that on "March 3, 2018, . . . [SCBV] held what purported to be a special meeting. From said meeting a resolution was issued entitled 'Resolution 2018-1 Unfair Process and Outcome of a Bid in the KBE Program.'" Shirley alleged that SCBV violated the Open Meetings Act in the following:
1. [] 782 KAR 1:010 § 8(2)(a) requires the presence of the Director of Kentucky Business Enterprises ("KBE") to be present at all meetings, including any special meetings;
2. [] 782 KAR 1:010 § 8(2)(b) requires KBE staff to be present at all meetings and to record the official minutes of meetings;
3. Alternatively, the purported special meeting was in violation of KRS 61.823, in that the SCBV did not properly provide written notice of the special meeting, did not properly deliver notice of said special meeting, and did not properly post written notice of said special meeting in a conspicuous place in the building where the special meeting took place.
Shirley further alleged that "this is the second instance that your committee has held such a special meeting, despite being warned that you are in violation of the law." 1
The record does not reflect that SCBV responded to the complaint. On April 9, 2019, Shirley initiated this appeal, reiterating the allegations in his complaint, and stating that SCBV "has failed to respond to these allegations." SCBV did not respond to Shirley's appeal, nor a subsequent follow-up correspondence from this office.
KRS 61.846(1) provides that upon receipt of a complaint, "the public agency shall determine within three (3) days . . . 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." It is not disputed that SCBV failed to respond to the complaint. Accordingly, in failing to respond to a complaint within three business days, SCBV violated the Open Meetings Act.
KRS 61.823 establishes the requirements for special meetings. KRS 61.823(3) provides that "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. " KRS 61.823(4)(a) provides that "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. " KRS 61.823(4)(c) provides that "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 shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting. "
Shirley alleges that SCBV did not comply with any of the special meetings requirements. SCBV has failed to respond to or dispute any of these allegations. Accordingly, based on the uncontested record before us, we must find that SCBV violated the Open Meetings Act. See 18-OMD-066 ("The Board's 'inability to produce evidence of strict compliance with the requirements of KRS 61.823[(3)] compels us to conclude that it violated the Open Meetings Act' . . . ."); 16-OMD-183 ("Based on the uncontested allegations . . . , we find that the Board . . . committed violations of KRS 61.810 . . . ."); 10-OMD-168 ("Because the Fiscal Court failed to provide any response to Ms. Houk's complaint, . . . , only chose to address one of the allegations in responding to her appeal from this inaction, and failed to provide any proof, this office must conclude that it violated the Open Meetings Act insofar as it did not comply with all of the notice requirements codified at KRS 61.823(3) and (4) prior to any of the special meetings . . . .").
Shirley also alleges that SCBV violated 782 KAR 1:010 § 8. This is not part of the Open Meetings Act. KRS 61.846(2) provides that "the Attorney General . . . shall review the complaint and denial and issue . . . a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." "The role of this office in adjudicating a dispute 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' . . . ." 12-OMD-200. This office has no authority to decide the application of other statutes or regulations outside the Open Meetings Act in the context of an open meetings appeal. Accordingly, we do not address whether SCBV complied with 782 KAR 1:010 § 8.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 As a remedy, Shirley requested that "you acknowledge that the special meeting was in violation of the Open Meetings Act and 782 KAR 1:010 § 8, that resolution 2018-1 issued in the special meeting was null and void and of no effect, and that you certify in writing that in the future the SCBV will comply with the Open Meeting Act and [] 782 KAR 1:010 § 8, by properly complying with the notice provisions of KRS 61.823 and that the SCBV will not hold any further meetings of the SCBV without the KBE Director and KBE staff.