In 2017, this issue concerning the valuation of Governor Matt Bevin's private residence, and its open meetings implications, made headlines.

https://www.courier-journal.com/story/news/politics/ky-governor/2017/05…

Could a quorum of the members of the Jefferson County Board of Assessment Appeals conduct an inspection of Governor Matt Bevin's private residence — to determine the value of the property as part of a tax assessment appeal — without complying with the requirements of the open meetings law?

https://www.courier-journal.com/story/news/politics/2017/08/01/news-med…

Anticipating a legal challenge to its actions, the board issued a "preliminary ruling" on the day of the inspection, August 1, 2017. In it, the board asserted that the inspection by a quorum of its members was "not a public meeting under the Open Meetings Act where neither the Board nor the parties discuss any issues germane to the matter aforesaid, and tentatively agree to reconvene in an open meeting for purposes of addressing any issues that may or may not arise as a result of said physical inspection, subject to the attendant notice requirements."

That challenge came very quickly — within one day in fact — when the Courier Journal filed an open meetings complaint with the board chair.

The CJ alleged, among other things, that the board violated the open meetings law when it excluded the public and the media from the August 1 inspection. The newspaper characterized as "irrelevant" the board's position that the inspection was not a public meeting because the members agreed not to "discuss any issues germane to the matter" in the course of the inspection.

The board denied the allegations and an open meetings appeal to the Office of the Attorney General followed.

The attorney general's staff ruled in favor of the Jefferson County Board of Assessment Appeals. Resolution of the issue on appeal turned on the absence of any indication that discussion of public business occurred.

https://ag.ky.gov/orom/2017/17OMD166.doc

The attorney general's staff was guided by the language of the governing law which states that " all meetings of a quorum of the members of a public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all time."

Simply stated, two elements must be present to trigger the requirements of the open meetings law: 1) a quorum of the agency members must be present and 2) the members must discuss public business *OR* take action.

The attorney general's staff acknowledged the presence of a quorum of the board but dismissed the notion that the board took action by "collective decision, a commitment or promise to make a positive or negative decision, or an actual vote."

The question of whether "public business" was discussed was a closer one.

The attorney general's staff noted that discussion of public business is not just any discussion between public officials. It is defined in case law as "the discussion of the various alternatives to a given issue about which the board has the option to take action."

The staff concluded that the CJ did not produce proof of discussion of public business.

A question arose in the course of the inspection concerning areas of the property — including the second floor, third floor, and detached structures — to which the board members were denied access. The attorney general's staff treated them as "incidental requests," such as a request aimed at securing staff support or assistance with which the office had previously dealt, and not as "discussions of the various alternatives to a given issue about which the board has the option to take action."

Those incidental requests did not, in the attorney general's staff's view, constitute discussion of public business.

The attorney general's staff acknowledged that the issue was a novel one and that there was scant evidence on which to decide it. "If it were established that the persons present at the inspection disregarded the strictures of the Preliminary Ruling and discussed public business," the staff admonished, "then such a meeting, if closed to the public, would violate" the open meetings law.

Taking the analysis a step further, the attorney general's staff observed that the legislature did not consider the implications of the open meetings law in enacting the statute — KRS 133.120(13) — relating to inspection of private residences by the board.

The staff stated, "In determining that the board would violate the open meetings law if it discussed public business during the physical inspections, we do not imply that [the open meetings law] imposes any obligation upon taxpayers to open their personal residences to the general public when they (or the PVA) exercise their right to an inspection under KRS 133.120(13). Rather, we merely conclude that's board of assessment appeals would violate the open meetings law by conducting, in a private place, the type of meeting that the law requires to be open to the public."

The open meetings decision of the attorney general's staff was not appealed to circuit court. Perhaps the decision not to appeal was driven by the rarity of such inspections and the unlikelihood that this issue would recur.

Bevin's attorney, Mark Sommer, indicated that of 1,100 valuation appeals filed in Jefferson County in 2017 this was the only instance in which the PVA demanded a physical inspection.

Fast forward two years, almost to the day, and the same controversy and open meetings issue present themselves a second time.

Whether a new legal challenge can — or will be brought — remains to be seen.

Absent more persuasive legal arguments or more compelling proof, the open meetings decision issued by the attorney general's staff in 2017 will presumably guide the decision in a new appeal to that office.

Alternatively, if the board stands firm in its position a challenger may choose to bypass the Office of the Attorney General and go directly to circuit court.