Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Oldham County Fiscal Court violated the Open Meetings Act at its regular meeting on June 19, 2012. For the reasons that follow, we find that the Fiscal Court did not substantively violate the Act.
By letter dated July 25, 2012, attorney T. Andrew Howell submitted a written complaint to Oldham County Judge/Executive David Voegele, in which he alleged that at its June 19 meeting the Fiscal Court ratified an amendment to an interlocal agreement which extended the boundaries of sanitary sewer service in the county. He contended that this action required enactment of an ordinance and a public hearing pursuant to KRS 220.115 . Mr. Howell's complaint did not allege that any public business was conducted in a closed session or secret meeting of the Fiscal Court. As a means of remedying the alleged violations, Mr. Howell proposed that the Fiscal Court conduct the required public hearing, allowing citizens "a meaningful opportunity to participate," and enact an amending ordinance. Having received no reply as required by KRS 61.846(1), he initiated this appeal by letter dated August 6, 2012.
The Fiscal Court's response to this appeal was provided by County Attorney John K. Carter on August 10, 2012. Mr. Carter explains that the Fiscal Court did not respond to the complaint because Mr. Howell's allegations did not "articulate any violation of the Open Meetings Act to which a response was or is required." The fact remains, however, that Mr. Howell framed his letter as an Open Meetings complaint and cited the Act in general, "KRS 61.805 et seq. " KRS 61.846(1) does not make exceptions to a public agency's duty to respond to a complaint under the Open Meetings Act, regardless of whether the allegations are deemed to articulate a violation. We therefore conclude that the Fiscal Court committed a procedural violation of KRS 61.846(1). 1
As to the allegations themselves, Mr. Carter is entirely correct that no violation of the Open Meetings Act was stated. Mr. Howell's complaint begins:
The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions; failure to comply with the strict letter of the law in conducting meetings of public agencies violates public good. KRS 61.805 et seq. Fiscal Court's ratification of the Amendment to the Interlocal Cooperation between the City of Crestwood, Louisville and Jefferson County Metropolitan Sewer District, and Fiscal Court of Oldham Court [ sic ] violated the Open Meetings Act. The Amendment should have taken the form of an amending ordinance which requires public notice and readings on two separate days. Fiscal Court failed to conduct a statutorily required public hearing before acting upon the Amendment.
The letter goes on to allege violations of KRS 220.115 , KRS 67.076(5), KRS 67.077, and KRS 65.245(2), but not of any provisions of the Open Meetings Act. While Mr. Howell argues that the Fiscal Court's failure to allow affected residents "the opportunity to participate in all required hearings requiring these issues ? violates the Open Meetings Act, " his contention is based only on statutes extraneous to the Act. 2
In 95-OMD-99, we stated:
The Attorney General has a limited function under the Open Meetings Act which is expressed in KRS 61.846(2). The Attorney General is required to review the complaint and denial and issue a written decision which states whether the public agency violated the Open Meetings Act. Thus, when an appeal is presented to this office under the Open Meetings Act we cannot decide whether other statutes and various local procedures and regulations have been violated. We can only decide if there has been a violation of the provisions contained in KRS 61.805 to KRS 61.850.
The Attorney General's jurisdiction under the Open Meetings Act does not extend to alleged violations of other statutes. Given the factual situation, we conclude that the Oldham County Fiscal Court did not substantively violate the Act.
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.
Distributed to:
T. Andrew Howell, Esq.Hon. David VoegeleJohn K. Carter, Esq.
Footnotes
Footnotes
1 Mr. Carter did provide Mr. Howell a copy of an advisory letter he sent to the County Judge/Executive on August 6, 2012, explaining why he believed the Fiscal Court's actions were lawful. This letter, however, did not comport with KRS 61.846(1)'s requirement that a response "be issued by the presiding officer, or under his authority," within three (3) business days.
2 The video records of Fiscal Court meetings provided to this office by Mr. Carter, incidentally, reveal extensive public participation in the relevant discussions by clients of Mr. Howell.