Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Cabinet for Health Services, Division of Long Term Care, violated the Open Meetings Act in the disposition of the August 12, 2002, complaint submitted to the Division by Stephen M. O'Brien's client, Wanda R. Delaplane. Because Mr. O'Brien's appeal was not initiated within sixty days of the date Ms. Delaplane submitted her open meetings complaint, we find that pursuant to KRS 61.846(2) that appeal is time barred.
As noted, Ms. Delaplane submitted a complaint to Marcia R. Morgan, Secretary of the Cabinet for Health Services, and Pamela J. Murphy, Inspector General for the Cabinet for Health Services, on August 12, 2002, in which she objected to her exclusion from the Informal Dispute Resolution hearing regarding the death of Loren Richards at Beverly Health and Rehabilitation of Frankfort. Ms. Delaplane maintained that the hearing was subject to the Open Meetings Act. By letter dated September 3, 2002, Ellen M. Hesen, General Counsel and Deputy Secretary of the Cabinet, and John H. Walker, Assistant General Counsel, requested an advisory opinion from the Attorney General on the issue Ms. Delaplane's complaint raised: Whether Informal Dispute Resolution hearings conducted by the Division of Long Term Care must be held in accordance with the provisions of the Open Meetings Act. The Cabinet took the position that they did not. On September 10, 2002, Ms. Delaplane was notified by email that the hearing with which she was concerned was postponed pending receipt of the Attorney General's opinion, but according to Mr. O'Brien there was "no further response from the Cabinet to the Complaint."
Although the record on appeal contains no reference to the Attorney General's response, on September 9, 2002, Assistant Deputy Attorney General Scott White notified the Cabinet that as a matter of policy this office declined to render an advisory opinion on the question raised. The record on appeal reflects no further written communication between the parties concerning the open meetings complaint. 1 On March 4, 2003, Mr. O'Brien initiated this open meetings appeal on behalf of his client, Ms. Delaplane, challenging the Cabinet's failure to respond to her complaint and its position that Informal Dispute Resolution hearings are not governed by the Open Meetings Act. In view of the lapse of time between the date Ms. Delaplane filed her complaint and the date this appeal was initiated on her behalf, "this office has no jurisdiction or authority to entertain the appeal and address the issue presented as it was not received within the required statutory time frame." 96-OMD-11, p. 2 (copy enclosed).
KRS 61.846(2) provides:
If a complaining party wishes the Attorney General to review a public agency's denial, the complaining party shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial. If the public agency refuses to provide a written denial, a complaining party shall provide a copy of the written complaint within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency. The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sunday, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850. In arriving at the decision, the Attorney General may request additional documentation from the agency. On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who filed the complaint.
(Emphasis added.) By its express terms, KRS 61.846(2) forecloses Attorney General review of an open meetings appeal that is not initiated within sixty days of the date of receipt of the agency's denial of an open meetings complaint or within sixty days of the date the complaint was submitted if the agency refuses to provide a written denial. Accordingly, Mr. O'Brien's appeal is time barred. Compare 00-OMD-109 and 01-OMD-141 (appeals were not time barred notwithstanding the fact that the complaints giving rise to them were submitted several months after the meetings they concerned took place. KRS 61.846(1) does not restrict the time within which an open meetings complaint must be filed, but KRS 61.846(2) requires the complainant to appeal the agency's denial of a complaint, or refusal to provide a denial to a complaint, within sixty days).
The hearing with which Ms. Delaplane was concerned was conducted on October 28, 2002, and she was neither notified of the hearing nor given an opportunity to attend. The propriety of the closure of that hearing has not been the subject of an open meetings complaint. Ms. Delaplane may appeal her exclusion from that hearing and, if the Cabinet denies her complaint, appeal that denial to the Attorney General within sixty days of receipt of the denial, or the date she submits her complaint if the Cabinet refuses to provide a written denial.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Stephen M. O'Brien, IIISavage, Garmer, Elliott & O'Brien, PLLC141 North BroadwayLexington, KY 40507
Marcia R. Morgan, SecretaryCabinet for Health Services275 East Main StreetFrankfort, KY 40601
Pamela J. Murphy, Inspector GeneralCabinet for Health Services275 East Main StreetFrankfort, KY 40601
John WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40601
Footnotes
Footnotes
1 It appears that in subsequent correspondence, Ms. Delaplane requested access to public records under the Open Records Act, and that that request was partially honored on February 19, 2003.
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