Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by A. C. Wilson, Publisher, Cave Country Newspapers, Inc., in regard to the response received from legal counsel for the Metcalfe County Board of Education concerning an allegation of a violation of the Open Meetings Act by the school board.
In a letter to the chairman of the school board, dated May 16, 1994, Mr. Wilson said in part:
Pursuant to Kentucky Revised Statutes 61.800-61.991, I am complaining about the lack of notification to Cave Country Newspapers, Inc., from the Metcalfe County School Board, regarding "casual gatherings," other than legally called and advertised meetings pursuant to statute(s), and action(s) taken by either the Metcalfe School Board Chairman Terry Jeffries, independently and/or corporately with two or more board members, regarding the solicitation and subsequent use of counsel during the recent superintendent search process.
Mr. Wilson concluded that the Open Meetings Act has been violated because there has been neither public notice nor a properly advertised public meeting to approve such action of the chairman of the school board and two other members of the board.
J. Gary Bale, Esq., on behalf of the chairman and the Metcalfe County Board of Education, responded to Mr. Wilson in a letter dated May 27, 1994. He denied that there had been a violation of the Open Meetings Act and advised Mr. Wilson in part as follows:
Prior to May 16, 1994, this office was involved in advising Mr. Jeffries, as chairman of the Metcalfe County Board, on several emergency matters relating to board action not to renew the contract of the superintendent and the implementation of the superintendent's search process. While such work was not formally authorized by the full board at the time it was performed, the full board did have the legal authority to "ratify" its chairman's actions at its May 16, 1994, meeting. Since Mr. Jeffries and board member Richard Hamlett chose to personally commit themselves to pay for such work prior to May 16, however, any question as to the legality of the contracting with this office prior to that date has become a moot point. Also, a formal resolution was adopted at the May 16 board meeting, so there certainly is no question with regard to work performed on and after that date being properly billable to the board itself.
In his letter of appeal to the Attorney General, received June 2, 1994, Mr. Wilson referred to the school board's hiring of legal counsel and the transaction of business without proper public notification or a public meeting to approve such actions. Mr. Wilson maintained that the chairman of the school board has illegally hired a law firm and subsequent ratification of that action by the school board should not excuse a violation of the law. He also stated that the response to his initial complaint of May 16, 1994 was not timely.
Mr. Bale, in a letter to the Attorney General received June 6, 1994, acknowledged that his response to Mr. Wilson was not timely. He also said that the school board took formal action in an open meeting on May 16, 1994 to approve the hiring of his law firm, effective May 16, 1994. Thus, as explained in Mr. Bale's letter, legal services rendered by his firm to the school board and its members on and after May 16, 1994 will be paid by the school board while services rendered by his firm prior to that date will be paid by Mr. Jeffries and the other board member from their personal funds.
The final document submitted to this office is a letter from Mr. Wilson, dated June 6, 1994, in which he continues to maintain that the school board, particularly Mr. Jeffries and one other member, have violated the Open Meetings Act.
KRS 61.846(1) sets forth the duties and obligations of a public agency, including, of course, a school board, relative to a complaint received under the Open Meetings Act. That provision states in part as follows:
The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision.
The school board's legal counsel violated the above-quoted provision when he did not communicate in writing with Mr. Wilson within the statutorily imposed time period. Other than making such a finding and suggesting that a public agency comply with the statutory requirement, this office has no authority under KRS 61.846(2) to do anything further in such a situation.
Having reviewed the documents and letters submitted and the provisions of the Open Meetings Act, this office further decides that the school board has not violated the Act relative to the procurement of legal services.
The school board, at an open and public meeting held on May 16, 1994, voted to employ Mr. Bale's law firm as of the date of that meeting. Nobody has alleged that the meeting of May 16, 1994 in any way violated the terms and provisions of the Open Meetings Act (KRS 61.805 to KRS 61.850). The record reflects that legal services rendered by Mr. Bale's firm on and after May 16, 1994 will be paid by the school board. Furthermore, legal services rendered by that firm, prior to May 16, 1994, to the school board chairman and the other board member will be paid by those persons from their personal funds. Nothing in the Open Meetings Act prohibits public officials from securing legal representation and advice with their personal funds outside the scope of a public meeting.
Either the appealing party, Cave Country Newspapers, Inc., or the Metcalfe County Board of Education or both of them may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4) (a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General shall be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.