Request By:
Mr. Phelps L. Lambert
Henderson City Prosecutor
Third Floor
Ohio Valley National Bank Building
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter of August 3, 1977 you state that you as Henderson City Prosecutor have been requested by a local newspaper to prosecute the Henderson City Commissioners and Mayor for attending a commission meeting allegedly held in violation of KRS 61.810. You point out that KRS 61.991 provides that "any person who knowingly attends a meeting of any public agency covered by KRS 61.805 - 61.850 of which he is a member, not held in accordance with the provisions of KRS 61.805 - 61.850 shall be punished by a fine of not more than one hundred dollars."
You state that you note that KRS 61.845 gives the circuit courts of the state jurisdiction to enforce the purposes of the Open Meetings Law. You request an opinion of the Attorney General as to whether a violation of the Open Meetings Law may be prosecuted by you as any other misdemeanor in the city police court or whether it should be prosecuted in the circuit court.
KRS 61.845 reads as follows:
"The circuit courts of this state shall have jurisdiction to enforce the purposes of KRS 61.810 to 61.840, by injunction or other appropriate order upon application by any citizen of this state."
This statute provides only for civil relief by the circuit court. (Our opinion given in the telephone conversation on August 2, 1977 was in error on this point.) In OAG 76-4 we said in regard to the penal provision of KRS 61.991 the following:
"The provision for prosecuting misdemeanors apply. The county, city or commonwealth attorney is the prosecutor. Any person may go before a judge and make a sworn complaint against a person charging an offense. Rules of Criminal Procedure 2.02. The judge, if he thinks there is probable cause, will issue a summons or warrant of arrest against the accused. RCr 2.04. The trial will be had in the quarterly or police court."
The civil relief provided in the circuit court under KRS 61.845 is independent of the penal provision of KRS 61.991. An action in one court does not bar an action in the other and the police court does have jurisdiction of a violation of KRS 61.991.