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 Fiscal Court violated the Open Meetings Act by repeatedly calling special meetings on consecutive days. We find that that the meeting agendas, and at least some of the notices, failed to comply with KRS 61.823.
On November 17, 2013, Lawrence Trageser submitted a written complaint to Spencer County Judge/Executive Bill Karrer. The complete text of the complaint was as follows:
Comes the Petitioner with just cause and complaint against Spencer County Judge Executive Bill Karrer for violations of the Open Meeting [ sic ] Act. Spencer County Judge Executive Bill Karrer has violated the Open Meetings Act, on no less than six consecutive days by intentionally calling repetitive SPECIAL MEETINGS on the Dates of Friday, September 6th, 2013, Monday, September 9th, 2013, Tuesday, September 10, 2013, Wednesday, September 11th, 2013, Thursday, September 12th, 2013, and Friday, September 13th, 2013 for the purpose of conducting normal business operations, under the deceptive tactic of calling them SPECIAL MEETINGS. Karrer was circumventing the Open Meetings Act by attempting to obstruct the people of Spencer County attending meetings by calling numerous and repetitive SPECIAL MEETINGS every day, confusing people of Spencer County as to the specific business being discussed, so concluded by 13-OMD-173, by calling numerous and repetitive SPECIAL MEETINGS, and by NOT following KRS. [ sic ] 61.820, in having a schedule of regular meetings for conducting business of Spencer County, specifically, NOT adhering to that schedule.
(Emphasis in original.) Upon his initial appeal to the Attorney General, we found this complaint deficient in that it did not propose a remedy as required by KRS 61.846(1). 13-OMD-209. On December 30, 2013, Mr. Trageser resubmitted his complaint to Judge Karrer along with an addendum requesting as a remedy that the fiscal court "cease and desist the act of calling SPECIAL MEETINGS in frequent numbers for the real purpose of conducting normal county business operations," and follow its regular meeting schedule. (Emphasis in original.)
On January 3, 2014, Spencer County Attorney Ruth A. Hollan responded to Mr. Trageser as follows:
During the September 4, 2013, Spencer County Fiscal Court, the magistrates discussed issues regarding the Spencer County Judge Executive Bill Karrer approving expenditures over $ 200.00 without their prior approval. Judge Karrer took the discussion seriously and called the first of several special meetings in order to obtain the court's approval for the expenditures that were over $ 200.00. The expenditures in question were necessary prior to the next regular court meeting and required immediate approval.
After calling several meetings without meeting the required quorum, the Spencer County Judge Executive Bill Karrer stopped calling the meetings. Judge Karrer's intentions were not to circumvent the Open Meeting[s] Act but was merely to get the approval the court required to approve the expenditures that were necessary.
The Spencer County Fiscal Court does have a schedule of regular meetings that has been created, adopted and provided to the public.
Mr. Trageser appealed to this office on January 7, 2014.
The main thrust of Mr. Trageser's complaint seems to be that the fiscal court called this series of special meetings in order to conduct its regular business at special meetings and thus to frustrate the purposes of the Open Meetings Act. Mr. Trageser has made this argument previously, at which time we ruled:
[I]n 11-OMD-129 this office stated that "if proof was presented that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny, " we would be inclined to "find a violation of KRS 61.820, requiring public agencies to hold their meetings 'at specified times and places convenient to the public' and 'provide for a schedule of regular meetings.'" In the absence of such proof, we find no violation of KRS 61.820.
In this case, we likewise find no proof that the six (6) repetitive special meetings of the fiscal court called within eight (8) days were intended for the purpose of "conduct[ing] the majority of its business at special meetings to avoid public scrutiny. "
In the first place, it does not appear that any business was in fact conducted at these meetings, since a quorum of the members was never convened. Secondly, as for the motivation behind the repeated special meetings, it may indeed have been an urgency on the part of the Judge/Executive to get approval for certain items of spending, as represented by the County Attorney. It is also possible, as suggested by Mr. Trageser in his earlier appeal, 1 that the Judge/Executive merely sought to inconvenience the fiscal court members in return for their insistence that he obtain their approval for those expenditures. Whichever was the case, there is nothing to suggest that a majority of the fiscal court's business was ever intended to be conducted at these special meetings, which were merely repeated attempts by the Judge/Executive to present the same set of specific expenditures for approval. We therefore find no violation of KRS 61.820.
Nevertheless, we reiterate our holding in 13-OMD-173 that the agenda items "Discuss county business" and "Approve county expenditures, purchases, bills and transfers" failed to give the public fair notice of the matters to be discussed at the special meetings, as required under KRS 61.823(3). We hereby adopt 13-OMD-173 (copy attached) as the basis for this portion of our decision.
Furthermore, although the record does not reflect what notice was given for the series of special meetings, we note the applicability of KRS 61.823(4), which requires a minimum of 24 hours' notice before each special meeting. To the extent that any special meeting may have been called for the following day only after a quorum had failed to appear on a given day, and was not set to begin at a later time in the day than the previous meeting, it would have been impossible to give the 24-hour notice required by KRS 61.823(4). Therefore, as to any meeting where that was the case, a violation of KRS 61.823(4) was committed.
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 TrageserHon. Bill KarrerRuth A. Hollan, Esq.
Footnotes
Footnotes
1 13-OMD-209.