Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Edmonson County Fiscal Court ("Fiscal Court") violated the Open Meetings Act, specifically KRS 61.820(1), by holding its regular meetings at 9:00 a.m. For the reasons that follow, we find that the Fiscal Court did not violate KRS 61.820(1). The record on appeal is unclear as to whether Fiscal Court responded to the Open Meetings complaint within three business days as required by the Open Meetings Act.
The Edmonson County Fiscal Court meets on the 2nd and 4th Monday of each month at 9:00 a.m. Lyndon Vincent ("Appellant") sent a written complaint to Edmonson County Judge-Executive Will Cannon ("Fiscal Court") complaining that the regular meeting time of the Fiscal Court was not convenient for the "working people" of Edmonson County to attend. Appellant claimed that "[almost] all the people work outside the county . . . and are unable to come to meetings unless they take off from work." Appellant requested that the meeting time for the Fiscal Court's meetings be changed to 6 p.m. The Fiscal Court responded to Appellant, explaining its understanding that the Open Meetings Act is meant to prevent "boards, committees and courts, etc. from meeting at inopportune times so the public can't come, like 3:00 a.m. on Sunday in an attempt to hide things from the public." The Fiscal Court stated that it does schedule two "night" meetings per year. The Fiscal Court included a list of eight nearby counties with the meeting times of those fiscal courts. Four of the eight fiscal courts reportedly hold their meetings at 9:00 a.m., three hold their meetings in the afternoon or evening, and one holds its meetings at 9:00 a.m. in even-numbered months, and at 5:00 p.m. in odd-numbered months. Appellant then appealed to this office. The Office of the Edmonson County Attorney responded to the appeal. The response explained that the meeting time of the Fiscal Court is not violative of the Open Meetings Act.
Analysis : In relevant part, the Open Meetings Act, specifically KRS 61.820(1), provides that "[a]ll meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public." In construing KRS 61.820(1), the Attorney General has observed:
The phrase "convenient to the public" is not defined or explained anywhere in the Open Meetings Act. It is obvious that the public agency has some flexibility and discretion in determining what is a convenient day and time. It is equally obvious . . . that no matter what day and time are selected . . . those decisions will meet with less than full and complete approval . . . ."
96-OMD-264, p 2. Accordingly, complainants have unsuccessfully challenged meetings held during the school day (95-OMD-106); at 9:00 a.m. (93-OMD-20); at 5:00 p.m. on Wednesday (96-OMD-264); and late into the evening (92-OMD-1728). See also 98-OMD-74. These decisions confirm that no time is convenient to each and every member of the public. Because no single day and time will meet with universal approval, the Attorney General has given public agencies considerable latitude in scheduling their meetings.
"Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times."
Knox Cty. v. Hammons, 129 S.W.3d 839, 845 (Ky. 2004) (emphasis in original). "[T]he open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location." Id. In the present case, as in Hammons , "nothing in the record indicates that persons wishing to attend or participate in the proceeding were effectively prevented from doing so." Id. Therefore, we find no violation of the Open Meetings Act arising from the fact that the Fiscal Court conducts its meetings at 9:00 a.m.
The record on appeal is unclear as to whether the Fiscal Court violated the requirement of KRS 61.846(1) 1 to respond to Appellant's complaint within three days. While Appellant did not specifically raise the issue of the timeliness of the Fiscal Court's response to his complaint, he highlighted the postmark on the envelope from the Fiscal Court, implicitly indicating the issue. The complaint to the Fiscal Court was received Tuesday, October 9, 2018, as evidenced by a photocopy of the delivery receipt provided by Appellant. The Fiscal Court was thus required to respond no later than Friday, October 12, 2018. The Fiscal Court's response to the complaint was undated. Appellant provided a photocopy of the postmark date of the Fiscal Court's response to the complaint which reflects that it was received by the U.S. Postal Service in Nashville, Tennessee, on Monday, October 15, 2018. We are left to speculate as to whether the envelope was mailed after Friday, October 12, or timely sent and somehow delayed. If the response was sent after October 12, then it would constitute a procedural violation of the Open Meetings Act. The record is insufficiently clear to make a determination on this issue.
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 KRS 61.846(1) states:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. 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 . If the public agency makes efforts to remedy the alleged violation pursuant to the complaint, efforts to remedy the alleged violation shall not be admissible as evidence of wrongdoing in an administrative or judicial proceeding. An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action. (Emphasis added.)