Request By:
William Hartmann Brammell, Esq.
409 E. Main Cross Street
P.O. Box 629
New Castle, Kentucky 40050-0629
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter raises two questions involving the local planning and zoning commission and, specifically, meetings conducted by the Board of Adjustments. Your questions are as follows:
First, after conducting a public hearing, may a Board of Adjustments deliberate a proposed dimensional variance or conditional use permit in a closed session, i.e. outside of the public format?
Second, is it required that there be a record of how each member of the Board of Adjustments votes on a particular issue by having each to state their vote or raise their hand? Or, may the vote of the Board of Adjustments be by secret ballot so long as the number of votes for and against are properly recorded pursuant to KRS 100.221.
In response to your first question, it is our opinion that after conducting a public hearing, a Board of Adjustments may deliberate in private and then return to an open and public setting to formally announce its final decision. See OAG 84-162, copy enclosed, where we said that a planning and zoning commission could deliberate in private when functioning in a quasi-judicial capacity pursuant to KRS 61.805(2). A public agency may be exempt as a quasi-judicial body when it makes a determination which affects substantial rights, exercises discretion and has held a fact finding hearing pursuant to notice. See OAG 83-446, copy enclosed.
In regard to your second question, KRS 100.221(3) provides in part that a board of adjustments must keep minutes of all proceedings which include the number of votes for and against each question. This office, in OAG 74-25, copy enclosed, concluded that the members of the Board of Adjustments could vote by secret vote. That opinion, however, was apparently rendered before the effective date of KRS 61.835.
KRS 61.835 requires in part that the minutes of action taken at every meeting of a public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded. In OAG 82-412, copy enclosed, at page four, we said the statute requires that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state the minutes. Finally in OAG 82-341, copy enclosed, at page one, this office said:
When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted.
Thus, the Board of Adjustments, a public body, cannot vote by secret ballot and the minutes of the meetings of the Board of Adjustments must indicate how each member voted on each issue before the Board. KRS 61.835 is the controlling provision.