Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Oldham County Code Enforcement Board violated the Open Meetings Act by: 1) failing to properly remedy previously alleged violations of the Open Meetings Act, 2) holding a closed session on August 1, 2012 that did not meet the requirements of KRS 61.815(1), and 3) allowing a person who was not an agency member to attend the closed session. We find that the Oldham County Code Enforcement Board did not hold a closed session in violation of KRS 61.815(1), and therefore did not violate the Open Meetings Act in allowing a person who was not an agency member to attend a closed session without cause. We have no authority to address an agency's failure to remedy previously alleged violations of the Open Meetings Act.
By letter dated June 13, 2012, Judy Ponder submitted a written complaint to Cindy Harbin, Chair of the Oldham County Code Enforcement Board ("Board"), in which she alleged that in its meeting on June 6, 2012, the Board did not vote on the motion to go into closed session, give notice of the general nature of the business to be discussed, the reason for the closed session, or cite the provision of KRS 61.810 authorizing the session. She further alleged that Code Enforcement Officer Tim Tyree ("Officer Tyree") was present in the closed session but was not a Board member. Ms. Ponder requested a lengthy list of remedies in the letter. Beach A. Craigmyle, counsel for the Board, responded in a letter dated June 18, 2012 that the Board did not deny that the Board failed to state the specific provision of KRS 61.810 authorizing the closed session, and that Officer Tyree's presence was necessary for his knowledge of the facts of the case discussed in closed session. Mr. Craigmyle promised that the Board would make every effort to remedy the alleged violations pursuant to her complaint.
On August 27, 2012, Ms. Ponder submitted another written complaint to the Board, alleging that the Board failed to remedy the Open Meetings Act violations as promised, held a closed session after its August 1, 2012 meeting without complying with KRS 61.815(1), and that the closed session was attended by two people who were not Board members, Officer Tyree and Amy Alvey, Administrative Services Coordinator for Oldham County Planning and Development Services. Oldham County Attorney John K. Carter responded in a letter dated August 30, 2012 and denied that any closed session occurred or that any action was taken.
Ms. Ponder appealed the Board's denial that a closed session occurred on August 1, 2012 and the presence of the persons who were not Board members in a letter dated October 9, 2012. Mr. Carter responded in a letter dated October 15, 2012, and reiterated that no closed session occurred, as Code Enforcement Officer Tim Tyree had merely requested to be off the record after the meeting had adjourned.
Ms. Ponder further appealed the Board's inadequate efforts to comply with the Open Meetings Act as promised in the response to her June 13, 2012 complaint in a letter dated October 10, 2012, in which she also reasserts the allegations in her October 9, 2012 appeal. Mr. Carter responded in a letter dated October 15, 2012 that it was an appeal of inadequate remediation, that no notice in any form of KRS 61.810(c) closed sessions is required pursuant to Cunningham v. Whalen, 373 S.W.3d 438 (Ky. 2012), and that closed sessions under KRS 61.810(j) are the only sessions limited only to members. Since both appeals involve the same parties and allege closed session violations, they have been consolidated into this decision.
Regarding the closed session on August 1, 2012 alleged in Ms. Ponder's October 9, 2012 appeal, a video recording of the meeting indicates that after the close of business, Officer Tyree said the following:
2:38:47: I do want to share with you all, this can be off the record for that matter, final orders for? (Officer Tyree pauses, and the recording ends.)
Ms. Ponder alleges that a closed session subsequently took place without meeting the requirements of KRS 61.815(1) , and that it was attended by people who were not Board members, Officer Tyree and Amy Alvey. Mr. Carter responds that Mr. Craigmyle was present for the meeting and avers that no closed session occurred, no public business was discussed, and no action was taken by the Board after the meeting adjourned.
KRS 61.815(1) provides the requirements for closed sessions of public agencies. Before going into closed session, the agency must provide notice of the general nature of the business to be discussed, the reason for the session, and the provision of KRS 61.810 that authorizes the closed session. A motion must then be made and carried in open session before going into closed session. No final business may be conducted at a closed session, and no business may be discussed at the closed session other than that which was announced. In this case, while Officer Tyree clearly wished to inform the Board of something off of the record, there is no evidence that the Board actually went into closed session or took any action subsequent to the adjournment of the meeting. Without further evidence, we cannot conclude that the Board went into a closed session in violation of KRS 61.815(1). 1
Regarding Officer Tyree's presence at the alleged closed session, while we do not find sufficient evidence to conclude that a closed session occurred, even assuming it did, the presence of Officer Tyree or Amy Alvey is not an intrinsic violation of the Open Meetings Act. "A person who is not a member of a public agency may be invited to attend a closed session if he or she 'can contribute information or advice on the subject matter under discussion? but should remain only so long as is necessary to make his [or her] contribution to the discussion.'" 00-OMD-219 at *3; OAG 77-560 at *1-2. If Officer Tyree or Amy Alvey's presence at the closed session was necessary to contribute to the subject matter under discussion, it would not be a violation. However, since we do not find any substantial evidence that a closed session occurred, we cannot address the issue of the presence of persons at the closed session who were not Board members.
Regarding Ms. Ponder's October 10, 2012 appeal alleging the failure to adequately remedy the Open Meetings Act violations as promised subsequent to her June 13, 2012 complaint, it is the established precedent of this office that we do not have the statutory authority to adjudicate remedies or their enforcement. "Because the role of this office in adjudicating a dispute under the Open Meetings Act is limited to issuing a decision 'stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850,' the Attorney General declines to comment on the remedies proposed or implemented aside from offering this guidance." 12-OMD-156 at *5; 08-OMD-164 at *2. The statutory authority of this office given in KRS 61.846(2) is limited to determining whether a violation of the Open Meetings Act occurred, and does not provide us with the authority to address remedies or lack thereof. Therefore we are without authority to address Ms. Ponder's October 10, 2012 appeal for failure to adequately remedy alleged prior violations of the Open Meetings Act.
In sum, we do not find sufficient evidence of a closed session in violation of KRS 61.815(1) at the August 1, 2012 meeting of the Oldham County Code Enforcement Board, and therefore cannot address whether the presence of anyone at such a closed session was consistent with the Open Meetings Act. We do not have the authority to review allegations of failure to remedy alleged prior violations of the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating an 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 any subsequent proceedings.
Distributed to:
Judy L. PonderCindy HarbinJohn K. CarterBeach A. Craigmyle
Footnotes
Footnotes