Request By:
Samuel Carlick, Esq.
McCracken County Attorney
McCracken County Courthouse
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether, under KRS Chapter 75, a fire chief or an assistant fire chief may be a member of the board of trustees of a fire protection district. You refer to KRS 75.160(1) and state that the statute appears to bar the chief of the fire department from attending executive sessions of the board of trustees.
KRS 75.031(1)(a), in regard to the composition of the board of trustees, provides as follows:
"Upon creation of a fire protection district or a volunteer fire department district as provided in KRS 75.010, the affairs of the district shall be conducted by the board of trustees consisting of seven (7) members, four (4) to be elected by the members of the district as hereinafter set out and three (3) to be appointed by the county judge/executive. Two (2) members of the board of trustees shall be elected by the members of the volunteer fire fighters of the district and shall be members thereof. . . ." (Emphasis added.)
While the statute specifically requires that two members of the board of trustees be members of the volunteer fire fighters, the statute does not define "members" or "department." The statute does not prevent the chief or assistant chief from being considered as members of the fire fighting force or department but it also does not specifically include them as members of the fire fighting force or fire department. KRS 75.100, however, defines a number of terms and under subsection (4) "fire department" means the officers, fire fighters and clerical or maintenance employes, including the chief and assistant chief of the department. In addition, under KRS 75.100(7) "member" includes the chief and all officers and employes of a fire department, a fire protection district or of a volunteer fire department.
KRS 75.160(1) states:
"The chief of the fire department in fire protection districts shall attend all sessions of the board, except executive sessions, and he shall execute all the orders of the board. Whenever 'chief' is used in KRS 75.100 to 75.260, it shall include the assistant chief when the chief is not on duty."
This statute would appear to pertain to the chief when he is functioning solely as the chief of the department. There is no indication here or anywhere else in KRS Chapter 75 that this statute covers those situations where the chief is a member of the board, or that the chief, as a board member, has lesser or reduced powers than those possessed by other members of the board of trustees.
A fire protection district or department existing pursuant to KRS Chapter 75 has been described as a "type of municipal corporation," Kelley v. Dailey, Ky., 366 S.W.2d 181 (1963), and is a public agency within the meaning of the "Open Meetings Act," KRS 61.805 et seq. Thus, meetings of the board of trustees are open meetings and the board may only hold closed meetings or executive sessions under specifically enumerated conditions. See OAG 80-240, copy enclosed, pages 5-6. However, even when an exception to the open meetings provision arises, such exceptions are permissive rather than mandatory and the board of trustees is not required to hold a closed session and bar everyone except board members.
KRS 75.160 is dealing with the chief of the fire department solely in his capacity as chief, as opposed to his capacity as a possible board member. It does not preclude him from attending executive sessions. It merely requires that he attend all regular sessions. If the chief is not on duty (if, for example, he is attending a meeting of the board of trustees) , then the assistant chief can perform the functions required under KRS 75.160.
In our opinion neither KRS 75.160 nor any other provision of KRS Chapter 75 prevents a chief or an assistant fire chief of a department or district organized pursuant to KRS Chapter 75 from serving as a member of the board of trustees of such a department or district or attending regular or closed meetings of that board of trustees.