Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the conflicting evidentiary record before us contains insufficient proof to substantiate Beth French's January 7, 2011, complaint that a quorum of the members of the Corydon City Council engaged in an illegal meeting in November 2010 to discuss and approve the purchase of appliances for the "newly constructed fire barn." We are guided in this result by 02-OMD-83 a copy of which is attached hereto and incorporated by reference. In particular, we refer the parties to the discussion at pages 5 and 6 of that open meetings decision in which we acknowledge our inability to resolve a factual dispute concerning an alleged illegal meeting of a quorum of the members of a public agency.
In her complaint, Ms. French alleged that Councilman Vernon Stone admitted that he participated in an illegal meeting with three other members of the council and the mayor at a wrestling match conducted in November 2011. In correspondence directed to this office after Ms. French initiated her appeal, Preston J. Wade responded to her allegations on behalf of Mayor Larry G. Thurby. Mr. Wade advised that Mayor Thurby and the council "vehemently den[y] that any such meeting took place outside a regularly scheduled council meeting." Neither party presents evidence 1 supporting his or her position or refuting that of the opposing party. Here, as in 02-OMD-83, "we are not equipped to resolve this factual dispute in either the Mayor or [Ms. French's] favor." 02-OMD-83, p. 4.
The record on appeal establishes one irrefutable fact: the Corydon City Council violated KRS 61.846(1) in failing to respond to Ms. French's January 7, 2011, request. That statute provides:
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. 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. . . . An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
Although Mr. Wade responded on behalf of the council to this office's notification of Ms. French's appeal, Mayor Thurby has not discharged his statutory duty as presiding officer of the council by responding in writing to Ms. French's open meetings complaint. Again, as in 02-OMD-83, "we encourage the parties to re-dedicate themselves to strict observance of the Open Meetings Act," including the statutory requirement that the presiding officer respond to all open meetings complaints in writing and within three business days.
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.
Footnotes
Footnotes
1 Such evidence might consist, for example, of meeting minutes or other documentation confirming Councilman Stone's admission or affidavits prepared by the mayor or councilmembers denying the allegation of an illegal meeting.