Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Thomas R. Emerson, Assistant Attorney General
Open Meetings Decision
This matter comes to the Attorney General as an appeal by Jeannie Burchett in connection with her complaint against the city of Olive Hill.
In a letter to Olive Hill Mayor Jim Short, dated February 4, 1997, Ms. Burchett alleged that at the city council meeting of January 14, 1997, the council went into a closed session and "illegal things" were discussed. She said that the council cannot go into a closed session to discuss general personnel matters and that the council should discuss at a future meeting those matters discussed in the closed session on January 14, 1997.
On February 19, 1997, this office received from Ms. Burchett what, apparently, is her letter of appeal. She said that her request had not been answered and that her request for copies of previous permits had not been honored.
Mayor Short faxed this office a letter, dated February 26, 1997, stating that he does not believe Ms. Burchett's statement that illegal things were discussed at the council meeting held on January 14, 1997. He stated that at the council meeting on January 14, 1997 and on two subsequent occasions Ms. Burchett discussed matters pertaining to her application for a mobile home park and plans for the mobile home park.
KRS 61.846(1) sets forth the duties and obligations of both the complaining party and the public agency in connection with a complaint registered under the Open Meetings Act. The written complaint to the presiding officer of the public agency shall state the circumstances which constitute an alleged violation of the Open Meetings Act and what the public agency should do to remedy the alleged violation. While this office cannotdecide the question raised on its merits, in view of the lack of facts and information furnished, it can be stated that the complaining party has at least satisfied the statutory requirements relative to the making of a complaint.
The statute requires that the public agency, within three business days after the receipt of the complaint, notify the complaining party in writing whether it intends to correct the situation set forth in the complaint. If the public agency denies the allegations set forth in the complaint the agency must set forth in its written response a statement of the specific statute supporting the public agency's denial and a brief explanation of how the statute applies to the specific situation under consideration.
The limited record available to this office at this time indicates that neither the mayor, as the presiding officer at the council meetings, nor any other city official has submitted a written response to the complaining party concerning the matters set forth in her letter to the mayor, dated February 4, 1997. The mayor's letter to this office, dated February 26, 1997, is not only untimely but it is unresponsive to the allegations made by the complaining party.
This office is not making and cannot make at this time any decision as to whether the city, at its meeting on January 14, 1997, violated the Open Meetings Act relative to the city council's closed sessions. It is, however, the decision of this office that the city violated the Open Meetings Act by its failure to respond in writing to the complaining party within three business days after the receipt of the complaint. See 96-OMD-154 and 96-OMD-262, copies of which are enclosed. The city should immediately respond in writing to Ms. Burchett relative to her complaint of February 4, 1997, addressed to the mayor, being certain to consider the issue she raised and include in the response the information required by KRS 61.846(1). Since this is an appeal under the Open Meetings Act we cannot address matters involving the Open Records Act as separate proceedings under that Act will be required.
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 KRS61.846(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 proceeding under the Open Meetings Act.