TO BE PUBLISHED

97-OMD-90

June 9, 1997

In re: Edward Patton Jr./Floyd County Board of Education

Open Meetings Decision

This matter comes to the Attorney General as an appeal by Edward Patton Jr., a member of the Floyd County Board of Education, in connection with his complaint against the Floyd County Board of Education and the Superintendent of the Floyd County School System.

In a letter to the Chairman of the Floyd County Board of Education, dated May 12, 1997, Mr. Patton stated he was protesting all actions taken by the board of education at special meetings held on April 4, April 26, and April 28, 1997, because of the board's failure to give him "legal notice of these meetings."

Gene D. Davis, Superintendent of the Floyd County Schools, responded to Mr. Patton in a letter dated May 16, 1997, and advised that he had complied with KRS 160.270(1). Mr. Davis said that statute does not require written notice of a special meeting. He also stated that he had attempted to contact Mr. Patton by telephone relative to the special meetings.

Mr. Patton's letter of appeal to this office, received May 27, 1997, again referred to the school board's failure to furnish him with timely written notice of the special meetings of the board. Mr. Patton referred to the specific provision in the Open Meetings Act dealing with notices of special meetings and the school board's written policy stating that notice of special meetings must be delivered personally, transmitted by fax, or mailed so that it is received at least 24 hours before the time of the special meeting.

In a letter received June 3, 1997, Mr. Davis responded to Mr. Patton's letter of appeal by stating in part that neither KRS 160.270 nor the school board's policy specifically require written notice to board members of a special meeting. He also referred to the school board's long-standing practice of notifying its members of special board meetings either in person or by telephone. Mr. Davis said that he only recently became aware of the provisions of KRS 61.823(3) concerning notice requirements for special meetings and that board policy will be amended to conform to the language of the statute.

The function of this office relative to the handling of an appeal under the Open Meetings Act is to issue a written decision stating whether the public agency violated the Open Meetings Act. The Attorney General cannot void actions taken or impose penalties for violations of the Open Meetings Act. Only the circuit court can do that. See KRS 61.846(2) and KRS 61.848(5) and (6).

KRS 61.850 provides that, "KRS 61.805 to 61.850 shall not be construed as repealing any of the laws of the Commonwealth relating to meetings but shall be held and construed as ancillary and supplemental thereto."

KRS 160.270 deals in part with special meetings of the school board and it only states that, "Each member of the board shall have timely notice of each meeting and the nature, object, and purpose for which it is called." It does not specify how that notice is to be communicated to the board members nor does it say precisely when that notice is to be received by the board members.

KRS 61.823 is the section of the Open Meetings Act dealing with special meetings. Subsection (3) states in part that the public agency shall provide written notice of the special meeting and that notice must set forth the date, time, and place of the special meeting and the agenda. Subsection (4)(a) of KRS 61.823 includes the following provision:

As soon as possible, 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(3) and (4)(a) are briefly discussed in 94-OMD-122, copy enclosed.

KRS 61.823 was, prior to July 14, 1992, codified as KRS 61.825 and that statute also required that written notice of special meetings be received by members of the public agency at least 24 hours before the special meeting. In the case of Coppage v. Ohio County Board of Education, Ky.App., 860 SW2d 779,784 (1992), the court examined both KRS 61.825 and KRS 160.270 in connection with an allegation that a school board decision was invalid because of failure to comply with the notice requirements of both statutes. The court concluded that the board had complied with "all applicable statutes regarding notice of the August 6, 1990 meeting." The court indicated that the twenty-four hour written notice requirement of KRS 61.825 applies to special meetings of school boards.

In OAG 78-274, copy enclosed, at page seven, this office dealt with the required notice to school board members concerning a special meeting. That opinion referred to the "timely notice" requirement of KRS 160.270(1) and the requirement in KRS 61.825 that written notice be received at least 24 hours before the special meeting. The opinion concluded as follows:

Thus, in view of the language of KRS 61.825, we believe the "timely notice" requirement of KRS 160.270(1) is "at least twenty-four (24) hours prior to the time of such meeting as specified in the notice."

It is, therefore, the decision of the Attorney General that the Floyd County Board of Education and the Superintendent of the Floyd County Schools violated the Open Meetings Act, specifically KRS 61.823(4)(a), by their failure to notify in writing all board members of the special meetings of the school board at least 24 hours prior to the commencement of those meetings.

A party aggrieved by this decision may challenge 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

Attorney General

Thomas R. Emerson

Assistant Attorney General

Copies of this decision

have been distributed to:

Edward Patton Jr.

P.O. Box 302

McDowell KY 41646

Gene D. Davis

Superintendent

Floyd County Schools

69 North Arnold Avenue

Prestonsburg KY 41653