Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General, (502) 564-7600
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by John T. Davis, Managing Editor, The Advocate-Messenger , as a result of the written response he received from Tony Wilder, County Judge/Executive of Boyle County. Mr. Davis states that the question to be resolved involves an "advisory committee" and whether such an entity is covered under the Open Meetings Act (KRS 61.805 to KRS 61.850).
In a letter to the County Judge-Executive, dated July 13, 1995, Mr. Davis maintained that the July 10 meeting of the county's Emergency Medical Services Committee was held in violation of the Open Meetings Law. Mr. Davis said the Open Meetings Act covers any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council or agency established, created, and controlled by a public agency. The fiscal court had been told that a committee meeting would be scheduled to consider the city's proposals about EMS and Mr. Davis alleged that his newspaper should have been notified of the July 10 meeting.
In his letter of appeal to this office, received July 27, 1995, Mr. Davis said in part that the committee in question involved the County Judge/Executive and two magistrates who met to consider proposals from the city of Danville relative to ambulance service.
In his request to Mr. Davis, dated July 19, 1995, the County Judge-Executive said that since the committee was appointed by himself without a resolution, executive order or an ordinance it is acting in an advisory capacity and is not subject to the Open Meetings Act. He cited OAG 82-331 in support of his position.
In OAG 82-331, copy enclosed, this office concluded that an advisory committee appointed by the mayor, consisting of city council members, was not a committee subject to the Open Meetings Act because the mayor did not have the authority to appoint members of the legislative body to deal with administrative or executive functions. The committee was not subject to the Open Meetings Act because it was an illegal entity with no authority to do anything. The Open Meetings Act at that time mentioned advisory committees and the 1982 advisory opinion recognized that committees of council persons, under the mayor-city council form of government, created by a legislative act of the council, to handle legislative functions, are public agencies under the Open Meetings Act. The County Judge-Executive has misconstrued the holding in OAG 82-331 as that opinion does not support the decision he made and the reasoning he advanced to support that decision.
In another advisory opinion, written before the 1992 amendments to the Open Meetings Act, this office, in OAG 91-54, copy enclosed, advised The Advocate-Messenger that an advisory body consisting of members of the Mercer County Fiscal Court and the local planning and zoning commission, created by the County Judge/Executive to discuss proposed fee increases for zoning changes, was a public agency for purposes of the Open Meetings Act.
The above situation is clearly distinguishable from that dealt with in 94 OMD-148, copy enclosed, where we decided that a meeting of various city and county officials and invited guests was an informal group which met on a periodic basis to improve communication and cooperation among governmental units in the county. The group had no formal authorization, no formal membership, no formal agenda or minutes, it took no formal action, made no formal recommendations, and did not meet as the result of any act of any public agency.
KRS 61.805(2)(g) states in part that a public agency includes any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency established, created and controlled by a public agency.
While the fiscal court is a public agency under KRS 61.805(2)(c), the County Judge/Executive seems to be relying on the fact that his unilateral action in creating the committee did not involve a state or local statute, an executive order, ordinance, resolution or other legislative act under KRS 61.805(2)(d). The fact remains that he took some kind of action as the committee did not exist until he did what he did to bring it into being.
KRS 61.805(2)(f) states that an entity is a public agency when the majority of its members are appointed by a public agency or by a member or employee of a public agency. The County Judge/Executive is clearly a member of a public agency as he is a member of the fiscal court (KRS 67.040) which is a public agency.
Thus, it is the decision of the Attorney General that the advisory committee created by the County Judge/Executive to consider ambulance service and EMS for the county is a public agency under the Open Meetings Act and failure to conduct meetings of that committee pursuant to the terms and provisions of the Open Meetings Act is a violation of that law.
A party aggrieved by this decision may challenge it 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 must 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.