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 Spencer County Board of Elections violated the Open Meetings Act by failing to give notice of a special meeting on August 13, 2012. For the reasons that follow, we find that the Board did not substantively violate the Act.
By letter dated August 23, 2012, Lawrence Trageser submitted a written complaint to Spencer County Clerk Lynn Hesselbrock, as chair of the Board of Elections, in which he alleged:
The meeting conducted at the Spencer Fire District Headquarters on August 13, 2012 was illegal and in noncompliance with KRS laws.
Petitioner is seeking response to or justification of, the following violations.
Count one: Board of Elections meeting was not posted.
Count two: Board of Elections special meeting did not have agenda with specific topics.
Count three: Board of Elections did not notify media 24 hours in advance.
Having received no written response, Mr. Trageser initiated this appeal to the Attorney General. He stated that Ms. Hesselbrock had informed him by telephone that she would not respond to him in writing.
The Spencer County Clerk responded to Mr. Trageser's appeal by two separate letters on September 14 and 15, 2012. Ms. Hesselbrock explained that the meeting on August 13, 2012, was a meeting of the Taylorsville/Spencer County Fire District, which she had attended because the Fire District was discussing whether to allow its fire stations to be used as polling places. She advises that the Spencer County Sheriff, who is an ex officio member of the Board of Elections, was also in attendance at the meeting, but only "in his capacity as a law enforcement official."
Since there are four (4) members of the Board of Elections, and a quorum of three (3) is required to conduct business, a quorum of the Board of Elections membership was not present at the Fire District meeting. Only "meetings of a quorum of the members" (or a series of meetings encompassing a quorum) can violate KRS 61.810. "Because there was no quorum, there was no meeting." 94-OMD-63. We need not decide, therefore, whether any public business was discussed by the two members present.
With regard to the handling of this complaint, Ms. Hesselbrock states: "I feel that Mr. Trageser's complaint was unjustified and therefore did not respond to him via written response. I did, however, speak with him on the phone explaining why the meeting was not an official meeting of the Board of Elections." The fact that a complaint may not be considered meritorious by the Board does not justify its failure to respond in writing. "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." 12-OMD-154. We therefore conclude that the Spencer County Board of Elections committed a procedural violation of KRS 61.846(1).
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:
Mr. Lawrence TrageserMs. Lynn Hesselbrock