Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Rockcastle County Recreation and Wellness Task Force is a public agency pursuant to KRS 61.870(1)(i) and (j) because its members were appointed by Rockcastle County Judge/Executive Buzz Carloftis and it was "established, created, and [is] controlled" by the County Judge. The contemporaneous written record confirms Judge Carloftis's central role in the appointment of the task force and refutes later descriptions of how the Task Force came into existence. 1
In his October 10, 2011, request, Mr. Mason asked that the Task Force provide him with copies of "ballots pertaining to the Recreational and Wellness Complex," records reflecting "the total cost of Industrial Park South up to the present[,] . . . how many employees Source Corp has at this time," and "how many employees are Rockcastle residents," and records reflecting "the names of the [Task Force] members," "how much tax money was spent" by the Task Force, and Ms. Hopkins' "current salary." The Task Force responded one day later that "legal counsel for the Kentucky Office of Local Government" had determined that the Task Force "is not affiliated with a public entity and therefore does not fall under the Open Records Law."
Shortly thereafter Mr. Mason initiated this appeal, asserting that County Judge/Executive Buzz Carloftis "appointed" the Task Force. In support, Mr. Mason attached an advertisement captioned "Keep Buzz Carloftis County Judge/Executive" from the May 13, 2010, Mount Vernon Signal , that concludes with the statement, "I have appointed a steering committee to now begin looking at future Youth Recreational Programs and Facilities." The phrase "Paid for by Buzz Carloftis" appears in small print in the lower right-hand corner of the advertisement. In addition, Mr. Mason attached an October 21, 2010, advertisement from the Mount Vernon Signal captioned "The Change is Already Here . . .," which states "Establishment of countywide recreation board" just above the concluding statement, "Keep the Change We Already Have County Judge/Executive Buzz Carloftis-Republican-Your vote and support is greatly appreciated." This advertisement was also "Paid for by Buzz Carloftis." Finally, Mr. Mason enclosed a September 22, 2011, letter from Judge Carloftis to the editor of the Mount Vernon Signal in which the Judge states:
The task force I appointed seventeen months ago to study the feasibility of such a project 2 has now made their presentation to the court.
In subsequent correspondence, Mr. Mason provided this office with Task Force sign-in sheets for January 12, 2011, April 6, 2011, May 25, 2011, and June 13, 2011, identifying Judge Carloftis as an attendee, and the minutes of these meetings excluding the June 13 meeting, identifying Judge Carloftis as a Task Force member.
In correspondence directed to this office after Mr. Mason initiated this appeal, Rockcastle County Attorney William D. Reynolds denied Judge Carloftis's involvement in the creation of the Task Force and the appointment of its members. Mr. Reynolds stated that the Task Force "does not report to the Fiscal Court" or "receive funding from the Fiscal Court." In response to our KRS 61.880(2)(c) requests for additional information, Mr. Reynolds stated that "[a] group of volunteer citizens came together and formed this group." He characterized Judge Carloftis's advertisements and letter to the editor as "political statements." 3 The overwhelming weight of external evidence refutes his position that the statements were "just" political.
Judge Carloftis went on record on at least three occasions stating that he "appointed" or "established" the task force, and at least once, stating that the task force "made their presentation to the [fiscal] court." He attended the meetings of the task force on several occasions and was identified in the minutes of three of these meetings as a "member." 4 He reaffirmed these events at a fiscal court meeting in which he described his charge to the task force, namely, "to consider the acquisition of property for recreation. " Although he now characterizes these statements as "political," Judge Carloftis cannot rewrite history.
KRS 61.870(1)(i) and (j) define the term "public agency" as
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), 5 (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
These definitional sections are self-explanatory, and, to the extent we have gleaned sufficient information about the Task Force through our KRS 61.880(2)(c) requests and the information Mr. Mason provided, we find they are clearly applicable to the Rockcastle County Recreation and Wellness Task Force. Judge Carloftis established and created the Task Force, as his own words attest, and "acting as one and the same" 6 with the Task Force, controls the Task Force by "appointing" its members, "establishing" its charge "to consider the acquisition of property for recreation, " utilizing county resources to supports its efforts, participating in its meetings as a member who, among other things, suggests what information "would be important to the magistrates," and coordinating its report to the Rockcastle County Fiscal Court. The record before us defeats any claim to the contrary.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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 proceeding.
Distributed to:
Gary W. MasonBuzz CarloftisWilliam D. Reynolds
Footnotes
Footnotes
1 In his letter of appeal, Mr. Mason asks that we declare "Rockcastle County Industrial Development and Rockcastle County Recreation and Wellness Task Force" "a public entity" for open records purposes. His request was directed to Holly Hopkins, identified on task force sign-in sheets as co-chairperson. There is no separate request to Rockcastle County Industrial Development in the record on appeal. It is therefore unclear whether Rockcastle County Industrial Development and Rockcastle County Recreation and Wellness Task Force are two separate entities or a single entity. Our decision focuses on the Recreation and Wellness Task Force.
2 This "project" appears to be the establishment of the "recreational and sports center" referenced in the sentence immediately preceding the quoted language.
3 Mr. Mason provided an audio CD of the Rockcastle County Fiscal Court's October 2011 meeting during which Judge Carloftis stated that "[a] little over a year ago, I asked a group of people to meet at Quail Park to consider the acquisition of property for recreation. "
4 At the April 6 Task Force meeting, Judge Carloftis "offered to print the copies [of a citizen survey] for distribution at the courthouse." This suggests the use of public resources for Task Force business. At the February 16 Task Force meeting, Judge Carloftis suggested the inclusion of a particular question on the survey, explaining that "[t]his would be important information to present to the magistrates." This suggests his active involvement and control of the Task Force's activities.
5 KRS 61.870(1)(a) defines the term "public agency" as "[e]very state or local government officer." As county judge/executive, Judge Carloftis is a "local government officer."
6 University of Louisville Foundation, Inc. v. Cape Publications, 2003 WL 22748265 (Ky. App. 2003) at p. 7.