15-OMD-154
August 12, 2015
In re: Robert Barker/Bourbon County Board of Assessment Appeals
Summary: Bourbon County Board of Assessment Appeals failed to refute complainant’s allegation that it is a public agency for open meetings purposes and that its noncompliance with the requirements of the Open Meetings Act constituted a violation of the Act.
Open Meetings Decision
Robert Barker appeals the failure of the Bourbon County Board of Assessment Appeals to adhere to the requirements of the Open Meetings Act in conducting the June 22, 2015, meeting at which the Board heard his property tax assessment appeal. On July 9, 2015, Mr. Barker submitted a written complaint to Board Chairman Gary Wrenn in which he alleged that he was excluded from portions of the Board’s June 22 meeting without explanation. As a means of remedying the alleged violation, Mr. Barker proposed, inter alia, that the Board “affirm the requirement that all business conducted be in accordance with the Open Meetings regulations.” Having received no response to his request, Mr. Barker initiated an open meetings appeal to this office.
To ensure that all interested parties were afforded the opportunity to weigh in on this issue, the Office of the Attorney General notified not only the Board Chairman and county attorney, pursuant to 40 KAR 1:030 Section 2, but also representatives of the Finance and Administration Cabinet and the Department of Revenue. We received no input from the Finance Cabinet or Department of Revenue. The Bourbon County Property Valuation Administrator (“PVA”) responded by quoting KRS 133.030(2), relating to “[t]he first regular meeting day of the board.” He did not explain the statute’s application to the open meetings dispute. The Bourbon County Attorney responded as follows:
The Bourbon County Board of Tax Appeals (“Board”),1 conducted a lawful public hearing on June 22, 2015, in which Robert Barker (“Mr. Barker”), was present on behalf of Artcroft, Inc. Once the Bourbon County Board of Tax Appeals members were properly sworn in, the Board reviewed the real property assessments of the Bourbon County PVA staff as required by law. Mr. Barker’s hearing was then conducted. Mr. Barker was present during the hearing and afforded the opportunity to present his evidence and make his appeal. The Board decision was issued in writing and mailed to Mr. Barker via certified mail, pursuant to KRS 133.120, which is attached hereto.
He maintained that the Board “complied with KRS 133.120 with regard to conducting a public hearing in Mr. Barker’s case.”
This is an issue of first impression for our office. We have located no case or open meetings decision addressing the status of a board of assessment appeals under the Open Meetings Act, and none is cited. We begin, therefore, with the statutes governing the creation, duties, and meetings of the board. KRS 133.020(1)(a) authorizes the creation of a county board of assessment appeal “composed of reputable real property owners residing in the county at least five (5) years.” Pursuant to KRS 133.020(1)(c)1.:
The board shall consist of three (3) members, one (1) to be appointed by the county judge/executive, one (1) to be appointed by the fiscal court, and one (1) to be appointed by the mayor of the city with the largest assessment using the county tax roll or appointed as otherwise provided by the comprehensive plan of an urban-county government.
KRS 133.020(1)(e)1. authorizes the creation of temporary panels “[i]f the number of appeals to the board of assessment appeals filed with the county clerk exceeds one hundred (100)….” These panels consist of three members “having the same qualifications and appointed in the same manner as the board members.” KRS 133.020(1)(e)2.
KRS 133.030 governs meetings of the board. Subsection (2) of that provision, quoted in the Bourbon County PVA’s response to Mr. Barker’s appeal, states:
The first regular meeting day of the board shall be devoted to the orientation and training program provided for in KRS 133.020(5), to a review of the assessment of the property valuation administrator and his deputies, and to a review of the appeals filed with the county clerk as clerk of the board, including a review of recent sales of comparable properties provided in accordance with the provisions of subsection (1) of this section, and an inspection of the properties involved in the appeals when in the opinion of the board such inspection will assist in the proper determination of fair cash value.
Neither KRS 133.020 nor KRS 133.030 expressly or impliedly exclude the board of assessment appeals from the requirements of the Open Meetings Act.
KRS 133.120 addresses the tax assessment appeal procedure but, again, makes no reference to the Open Meetings Act. With respect to appeals to the board of assessment appeals, after an unsuccessful assessment conference with the PVA, KRS 133.120(3)(a) states:
The board of assessment appeals shall hold a public hearing for each individual taxpayer appeal in protest of the assessment by the property valuation administrator filed in accordance with the provisions of subsection (2) of this section, and after hearing all the evidence, shall fix the assessment of the property at its fair cash value.
Subsection (2) provides direction on the filing of individual taxpayer appeals but does not speak to the public hearing process. We have closely examined KRS 133.120 and find no express or implied exclusion for the board from the requirements of the Open Meetings Act. Nor were we able to locate any other statute or administrative regulation addressing the board’s public hearing process or its exclusion from the requirements of the Open Meetings Act.
KRS 61.805(2) defines “public agency,” as used in the Open Meetings Act, to include:
(a) Every state or local government board, commission, and authority;
. . . .
(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government; [and]
(f) Any entity where the majority of its governing body is appointed by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of [KRS 61.805(2)], a member or employee of a “public agency,” a state or local officer, or any combination thereof[.]
The Bourbon County Board of Assessment Appeals is a local government board that is created pursuant to state statute whose governing body is appointed by a public agency, the Bourbon County Fiscal Court, and two local officers, specifically, the county judge/executive and the mayor. It therefore falls squarely within the definition of the term “public agency.”2 In the absence of any conflicting legal authority or exclusionary statutory language, we find that the Board of Assessment Appeals is a public agency, as defined in KRS 61.805(2)(a), (d), (e), and (f), and subject to all requirements established in KRS 61.800 to KRS 61.848. The Board violated KRS 61.810(1)3 by excluding Mr. Barker from portions of its meetings without citing a statutory basis for doing so. See KRS 61.815(1)(a) and (b) and KRS 61.810(1). In addition, the Board violated KRS 61.846(1)4 by failing to respond in writing, and within three business days, to Mr. Barker’s open meetings complaint. Neither statute nor case law establish how the board of assessment appeals must conduct the “public hearings” required by KRS 133.120(3)(a), but it must, at a minimum, comply with all provisions of the Open Meetings Act in discharging this duty. Accord, OAG 79-7 (recognizing that, absent express legal exclusion from the requirements of the Open Meetings Act, a committee established for the purpose of conducting public hearings on the expenditure of federal grant money must comply with mandatory public hearing requirements and mandatory open meetings requirements).
Either party may appeal this decision 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.
Jack Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#298
Distributed to:
Robert Barker
Michael R. Williams
Gary Wrenn
Geri Grigsby
Douglas Dowell
Greg A. Jennings
G. Davis Wilson
Wayne Turner
[1] The parties refer to the Board as the Bourbon County Board of Tax Appeals rather than the Bourbon County Board of Assessment Appeals. The Kentucky Board of Tax Appeals is an “administrative review agency. . .attached to the Public Protection Cabinet for administrative purposes.” KRS 131.310. It is “vested with exclusive jurisdiction to hear and determine appeals from final rulings, orders, and determinations of any agency of state or county government affecting revenue and taxation.” KRS 131.340(1). The agency whose statutes we evaluated in this open meetings appeal is properly denominated the Bourbon County Board of Assessment Appeals.
[2] For example, KRS 61.805(2)(g) states that “public agency” means:
Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection;
(Emphasis added.)This provision expressly excludes “a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees,” from that definition of “public agency” found at KRS 61.805(2)(g). Compare 14-OMD-063 (determining that the Oldham County Board of Adjustment Appeals violated the Open Meetings Act when it conducted a closed session for “deliberations” pursuant to KRS 61.810(1)(j). That statute expressly excludes “meetings of planning commissions, zoning commissions or boards of adjustment” from the exception to the Open Meetings Act authorizing closed session “[d]eliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representative, nor any other individual not a member of the agency’s governing body or staff is present”).
[3] KRS 61.810(1) provides, “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times….”
[4] KRS 61.846(1) provides that an open meetings complainant must:
submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision….The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action. (Emphasis added.)