NOT TO BE PUBLISHED
May 5, 1994
IN RE: Bryan Smeathers/City of Owensboro
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by Bryan Smeathers concerning his letter to the mayor of the city of Owensboro and the mayor's response to his letter.
In a letter to the city's mayor, dated March 31, 1994, Mr. Smeathers, in a section of his letter designated "Complaint," referred to the broadcasting of city commission meetings on a local cable television station and the lack of any existing written policy relative to questions by telephone from persons viewing the meeting. Mr. Smeathers in another section of his letter designated as "Remedy" then listed various procedures to correct the problems as he sees them.
Mayor David C. Adkisson, in a letter to Mr. Smeathers, dated April 6, 1994, advised that there is no basis for the "Complaint" under the Open Meetings Act. He discussed several sections of the Act and stated that the city was complying with all of these provisions. Since there was a failure by Mr. Smeathers to set forth the facts supporting the alleged violations of the Act, the city could not respond to the proposed remedies.
In his letter of appeal to this office, received April 14, 1994, Mr. Smeathers presents in part an issue dealing with a previously issued decision of this office involving the Open Records Act.
The remainder of Mr. Smeathers' letter of appeal allegedly deals with the Open Meetings Act. He complains of the delay in the city's response to his complaint of March 31, 1994, in that he did not receive the city's response until April 12, 1994. He states that the city failed to respond to his recommendations and he acknowledges that the Open Meetings Act has no provisions pertaining to how the city commission should handle viewer calls involving televised commission meetings.
This office also received a letter from the city attorney, dated April 19, 1994, in which he stated that the complaint failed to state any facts or circumstances constituting a violation of the Open Meetings Act. He also said that the city, through its mayor, responded as quickly as possible under the circumstances. However, Good Friday (a city holiday), the mayor's vacation, and the mayor's attendance at Congressman Natcher's funeral all intervened to cause a delay in the city's response.
Since this is supposed to be an appeal under the Open Meetings Act, we should not be presented with matters pertaining to the Open Records Act. All we can say about 94-ORD-45, a decision rendered under the Open Records Act, is that a party has thirty days from the date that the Attorney General renders his decision to appeal to the circuit court. See KRS 61.880(5)(a). If an appeal is not filed within the thirty-day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the circuit court. See KRS 61.880(5)(b). Mr. Smeathers will have to proceed pursuant to the statutory provisions rather than coming back to this office in regard to a previously issued decision under the Open Records Act.
The Open Meetings Act (KRS 61.805 to KRS 61.850) does contain procedures relative to the required response time of the public agency. KRS 61.846(1) requires in part that the public agency respond in writing within three business days of the receipt of the complaint. The city's response was received approximately five business days after the date on which it should have been received, a technical violation, but hardly a violation of major proportions, particularly under the fact situation presented.
While not excusing the delay in the response time but further minimizing its effect upon the complaining party it is our decision that the complaint presents no violation of the Open Meetings Act. KRS 61.846(2) limits the Attorney General, in handling appeals under the Open Meetings Act, to rendering a decision as to whether the public agency violated the provisions of the Act. After examining the Open Meetings Act, we find no provision or requirement relative to the existence of a written policy by a city as to how it handles questions by telephone from persons viewing televised broadcasts of city commission meetings. Since the Open Meetings Act has no such provisions on such matters, the city, by its failure to adopt a policy on those matters, cannot possibly have violated the Act.
Either Bryan Smeathers or the city of Owensboro or both of them may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
P.O. Box 2212
Owensboro, Kentucky 42302
David C. Fowler, Esq.
City Attorney, City of Owensboro
P.O. Box 847
Owensboro, Kentucky 42302-0847