TO BE PUBLISHED
October 10, 1996
In re: TKR Cable of Northern Kentucky, Inc./Campbell County Cable Board
Open Meetings Decision
This matter comes to the Attorney General as an appeal by counsel for TKR Cable of Northern Kentucky, Inc., in connection with a complaint filed against the Campbell County Cable Board.
In a letter to the Campbell County Cable Board, dated September 10, 1996, Donald J. Ruberg maintained that the meeting of the Board held on September 5, 1996, was an illegal meeting. He said the meeting in question was a special meeting but despite repeated requests he did not receive notice of the meeting. He further stated that no agenda was prepared for the special meeting and thus nothing could be discussed or acted upon at that meeting.
Kirt W. Rockel, Executive Director of the Campbell County Cable Board, responded to Mr. Ruberg in a letter dated September 13, 1996, and denied that the meeting held on September 5, 1996, violated the Open Meetings Act. Mr. Rockel said he sent Mr. Ruberg a notice of the special meeting on September 3, 1996. While Mr. Rockel did not address the issue of the agenda for the special meeting, he said that even if the resolution adopted at the special meeting were void, the Board had already addressed the matter involved in the resolution in a letter dated August 27, 1996.
In his letter of appeal to the Attorney General, received September 26, 1996, Mr. Ruberg reiterated that he had not received a notice concerning the special meeting of September 5, 1996, and that no agenda had been prepared for that meeting. He also stated that a board can only speak through its minutes and he requested the Attorney General to confirm that proposition.
On October 2, 1996, the Attorney General received a letter from Michael A. Marrero, legal counsel for the Campbell County Cable Board. He said in part that the Open Meetings Act does not require a public agency to specifically notify Mr. Ruberg or his client of a special meeting. Notwithstanding the legal requirements, the Board did notify Mr. Ruberg and his client of the meeting in question according to Mr. Marrero.
Mr. Marrero did not address the matter of the agenda for the special meeting but he did maintain the Board was not required to adopt the resolution which apparently was the purpose of the special meeting as the Board's August, 1996 letter complied with the requirements applicable to the Board relative to the matter in question.
KRS 61.846(2), dealing with the role of the Attorney General relative to an appeal under the Open Meetings Act, provides in part that the Attorney General shall issue a written decision stating whether the public agency violated the provisions of the Open Meetings Act. We will, therefore, confine this decision to the matters pertaining to notice and the agenda in a situation involving a special meeting.
KRS 61.823 concerns special meetings. Subsection (3) of the statute requires that the public agency provide written notice of the special meeting. That notice must set forth the date, time, and place of the special meeting and the agenda. Furthermore, the subsection states that, Discussions and action at the meting shall be limited to items listed on the agenda in the notice.
KRS 61.823(4)(a) requires in part that written notice of the special meeting 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 to receive notice of special meetings.
KRS 61.823(4)(b) provides that written notice of the special meeting 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.
KRS 61.823(4)(a) and (b) dealing with the written notices required for a special meeting mandate that those notices be delivered to specifically named persons and posted in particular locations. See 94-OMD-111, copy enclosed. While we do not know whether the Campbell County Cable Board sent the notices of the special meeting to TKR Cable of Northern Kentucky, Inc., and its legal counsel, the fact remains that TKR Cable and its counsel are not among those entities and person required by law to receive such notices.
KRS 61.823 requires that the written notice of the special meeting include various items, one of which is the agenda. Furthermore, discussions and action at the special meeting are, by statute, limited to the items listed in the agenda in the notice which must be delivered and posted. See 94-OMD-119, copy enclosed. Failure to include an item on the agenda for a special meeting precludes the public agency from considering that item at that special meeting. We presume there was no agenda relative to the written notice for the special meeting of September 5, 1996, as neither the Board's Executive Director nor its legal counsel addressed that matter in the documents made available to the Attorney General's Office in connection with this appeal.
It is the decision of the Attorney General that the public agency's failure to supply the complaining party and its legal counsel with a copy of the notice of the special meeting was not a violation of the Open Meetings Act as they are not legally entitled to such notice under the Act. Also, the written notice of a special meeting must include the agenda and a failure to do so constitutes a violation of the Open Meetings Act and precludes the public agency from discussing any matter at the special meeting not set in the agenda contained in the written notice.
A party aggrieved by this decision may appeal it 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 proceeding under the Open Meetings Act.
A. B. Chandler III
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been distributed to:
Donald J. Ruberg
O'Hara, Ruberg, Taylor, Sloan and Sergent
209 Thomas More Park - Suite C
P.O. Box 17411
Covington, KY 41017-0411
Kirt W. Rockel
Campbell County Cable Board
175 Johns Hill Road
Highland Heights, KY 41076
Michael A. Marrero
Benesch, Friedlander, Coplan & Arnoff, P.L.L.
2800 Cincinnati Commerce Center
600 Vine Street
Cincinnati, Ohio 45202-2409