Some open meetings battles may not be worth fighting.
Or at least that seems to be the message in the latest installment of the ongoing legal imbroglio involving the property tax assessment on Matt Bevin's private residence.
In a July 23 post, we noted that in 2017 the open meetings issues relating to a site inspection of the residence — by a quorum of the members of the Jefferson County Board of Assessment Appeals —generated headlines.
https://www.facebook.com/kyopengovernment/posts/485943395285721?__tn__=…
It also generated an open meetings appeal to the attorney general and a decision of that office finding no evidence of a violation of the open meetings law *on the facts presented.*
https://ag.ky.gov/orom/2017/17OMD166.doc
This August 1 Courier Journal article indicates that the 2019 site inspection —conducted at the request of Jefferson County Property Valuation Administrator Colleen Young — went off without a hitch.
From an open meetings perspective, it also apparently went off without legal challenge.
Reporter Tom Loftus writes that the board cited the 2017 open meetings decision issued by the attorney general's staff, and "board policy," in advising him that "he would not be permitted to join the board for Wednesday's inspection."
The OAG staff's decision turned on the fact that two elements must be present to establish a violation of the open meetings law: 1) the presence of a quorum; and 2) discussion of public business or taking action.
Although a quorum of the board was present for the 2017 inspection, no public business "germane to the matter" was discussed. The staff concluded that the CJ did not produce proof to the contrary, *but warned* that "if it were established that the persons present at the inspection . . . discussed public business, then such a meeting, if closed to the public, would violate" the open meetings law.
In our July 23 post, we noted that in 2017 Bevin's attorney, Mark Sommer, commented on how rarely the board conducted a site inspection. In the attached August 1 article, Sommer reaffirmed that "in 30 years' practice before this Board I've heard of two residential visits demanded by the PVA, both of the Governor's home, and twice in 24 months."
"Perhaps the decision not to appeal" the 2017 open meetings decision, we observed, "was driven by the rarity of such inspections and the unlikelihood that it would recur."
Or perhaps, we suggested, the CJ might be dissuaded from initiating a new legal challenge based on the absence of "more persuasive legal arguments or more compelling proof."
In many open meetings disputes, producing proof is problematic. Since the complainant is often excluded from the meetings at which the allegedly illegal discussions occurred, the disputes often devolve into "he said, she said" swearing contests.
The CJ may initiate an open meetings challenge to the board's 2019 site inspection now or in the future. The 60 day limitation on filing an open meetings *appeal* does not begin to run until after the open meetings *complaint* has been submitted to/denied by the offending public agency.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23054
But there are a nearly infinite number of other legal battles to be fought on a nearly infinite number of other legal battlefields. The CJ may well decide to claim a partial victory and depart the field.
