Request By:
Joseph G. Laird
Gene Zick
C. Robert Hedges
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Russellville violated the Kentucky Open Meetings Act in failing to comply with the requirements of the Act as it pertained to the special meetings of the Russellville City Council held on March 13, 2008, and March 14, 2008, and whether the meetings were held at times inconvenient to the public. Because the complainant did not submit a written complaint to the presiding officer of the City per KRS 61.846(1), or comply with KRS 61.846(2) as required to perfect an Open Meetings appeal, this office must decline to render a decision under the Open Meetings Act.
In his letter of appeal, Joseph Laird alleges a violation of the Open Meetings Act. However, this office is precluded from rendering a decision under the Open Meetings Act where the appeal has not been perfected consistent with the mandatory language of KRS 61.846(1) and (2). In relevant part, KRS 61.846(1) provides:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation.
Pursuant to KRS 61.846(2):
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, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.
In his letter of appeal, Mr. Laird states "[e]nclosed you will find a complaint letter I hand delivered to the Mayor of Russellville on April 8, 2008." He further explained:
In the letter [dated April 1, 2008], I complain about a City Council meeting held March 14th that I feel was called in an improper manner, and called it an "emergency meeting" , because that i[s] how it had been described by the Mayor on Radio and in the newspaper. It was not legally an "emergency meeting" , but rather a "special meeting" as defined in KRS chapter 61.
After receipt of notification of the Open Meetings Appeal, C. Robert Hedges, Russellville City Attorney, provided this office with a response to the issues raised in the appeal. Addressing Mr. Laird's claim that he had hand delivered the open meetings complaint to the Mayor on April 8, 2008, Mr. Hedges advised, in relevant part:
Mayor Gene Zick had never seen the April 1, 2008, letter attached to Mr. Laird's appeal, until the appeal was filed. See Affidavit of Mayor Gene Zick (Exhibit "A").
The City had previously received several Open Records Requests from Mr. Laird. At the April 8, 2008, City Council Meeting, Mr. Laird stated to Mayor Gene Zick, before the Meeting started, that he (Laird) would be filing a Complaint with the Attorney General because he had not received the City Council minutes for March 14, 2008, as previously requested; Laird then handed Mayor Zick a sealed envelope ( See Affidavit, Exhibit "B").
?
The sealed envelope Mr. Laird handed Mayor Zick did not contain the letter which has now been attached to the papers filed with the instant appeal. ( See Exhibit "A", Affidavit of Mayor Gene Zick).
In his Affidavit, Mayor Zick states as follows:
1. I am Mayor of the City of Russellville, Kentucky.
2. That the first time I have ever seen the letter dated April 1, 2008, and attached to Mr. Laird's appeal to the Attorney was when the appeal arrived by facsimile from the Attorney General's office.
3. That the sealed envelope handed to me on April 8, 2008, by Joe Laird, contained a document purported to [b]e an Open Records appeal to the Attorney General, but it did not contain the April 1, 2008, letter which Mr. Laird has now attached to his appeal to the Attorney General.
On the other hand, Mr. Laird has provided no indication or proof that he, in fact, has ever submitted a written complaint to the Mayor of the City of Russellville. Therefore, the Attorney General cannot rule upon an alleged violation of the Open Meetings Act until Mr. Laird properly perfects an appeal consistent with the mandatory language of KRS 61.846(1) and (2). We note that nothing in the statutes preclude Mr. Laird from submitting a new complaint to the Mayor in which he restates the circumstances constituting the alleged violation and proposed remedial measures. 00-OMD-156.
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 proceedings.