16-OMD-183
August 29, 2016
In re: Donald Fulton/Jefferson County Board of Assessment Appeals
Summary: Jefferson County Board of Assessment Appeals violated KRS 61.810(1) by not opening all meetings to the public and improperly allowed Property Valuation Administrator to be present during closed deliberations under KRS 61.810(1)(j).
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Assessment Appeals violated the Open Meetings Act at its meetings on July 12 and 14, 2016. For the reasons that follow, we find that the Board violated the Act in two respects.
By two letters dated July 14 and 15, 2016, attorney Donald Fulton submitted written complaints under the Open Meetings Act, in which he alleged (1) that the Board would only admit members of the public into its meetings “where all board members and the presenting property owners agreed,” and (2) that the Board was routinely allowing representatives of the Property Valuation Administrator (PVA) to be present during closed deliberations, in violation of KRS 61.810(1)(j). Mr. Fulton included a list of proposed remedial measures for the alleged violations.
On July 20, 2016, Matthew J. Golden, Civil Division Director for the Jefferson County Attorney’s Office, responded to both complaints, advising that the Board had adopted the following procedures “as of today’s date”:
1. The BoAA is conducting open and public meetings without limitation. Pursuant to KRS § 133.120(3)(a), the department and the taxpayer, or their authorized representatives, are allowed to present evidence at that hearing.
2. The BoAA is closing its meetings during the deliberative phase of the hearing pursuant to KRS § 61.810.
3. The Jefferson County Clerk’s Office, with functions akin to a court clerk in these matters, are considered “staff” and they may remain inside the deliberations to assist the arbiters.
4. The PVA officer, as litigant, is not remaining in the room during deliberations.
5. Should the arbiters need additional information, both the PVA and the taxpayer are invited into the room pursuant to KRS 133.120(3)(e).1
Mr. Golden further stated, “it is my hope that we have accomplished your goal of making this process open and clear,” and “I have offered the services of the Jefferson County Attorney’s Office, Civil Division, to aid and educate the BoAA and the clerks prior to each appellate season.” Mr. Fulton initiated an appeal to this office on July 21, 2016.
A county board of assessment appeals has authority under KRS 133.120 to hear appeals from taxpayers in protest of assessments by the PVA. Temporary hearing panels may be created pursuant to KRS 133.020 for large volumes of appeals, the members having the same qualifications and appointment procedures as board members. The Board of Assessment Appeals is a public agency for purposes of the Open Meetings Act. 15-OMD-154.
KRS 61.810(1) provides that, in the absence of a listed exception, “[a]ll 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.” The Board has not denied Mr. Fulton’s allegation that, prior to his complaint, members of the general public were excluded from its meetings except “where all board members and the presenting property owners agreed.” Since this allegation is not in dispute, we conclude that the Board was acting in violation of KRS 61.810(1) on the dates in question by conducting closed meetings without legal authority.
In relation to Mr. Fulton’s second complaint, KRS 61.810(1)(j) authorizes the exclusion of the public from:
Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency’s governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment[.]
(Emphasis added.) As with the first allegation, the Board does not deny that prior to Mr. Fulton’s complaint, a representative of the Jefferson County PVA was routinely present during its closed deliberations; nor does it contend that the PVA’s representative is regarded as “staff.” Therefore, once again, the allegation is not disputed. Accordingly, the record shows, and we conclude, that the Board allowed the PVA’s representative into deliberations on the dates in question, which were therefore unlawfully closed to the public due to a failure of compliance with KRS 61.810(1)(j).
The majority of Mr. Fulton’s argument on appeal has to do with the alleged inadequacy of the remedies implemented by the Board. Meanwhile, in the Board’s July 29, 2016, response to the appeal, Mr. Golden argues that because the Board has now implemented remedies, “there is nothing more for the Attorney General’s office to do and the matter should be concluded.” Both of these arguments misconstrue the jurisdiction of this office under KRS 61.846, which does not extend to determining the adequacy of remedies,2 but only to issuing “a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.” KRS 61.846(2); see also 08-OMD-164.
The Board, nevertheless, contends that because Mr. Fulton brought his appeal under subsection (3) of KRS 61.846 (which applies where a public agency has agreed to effect a remedy), this office cannot address the alleged violations of the Open Meetings Act. On the contrary, KRS 61.846(3)(c) provides: “The adjudicatory process set forth in subsection (2) of this section shall govern as if the public agency had denied the original complaint.” Therefore, pursuant to that adjudicatory process, the function of the Attorney General is still to determine “whether the agency violated the provisions of KRS 61.805 to 61.850.”3 Accordingly, based on the uncontested allegations by Mr. Fulton, we find that the Board of Assessment Appeals committed violations of KRS 61.810 as alleged in his complaints.
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.
Andy Beshear
Attorney General
James M. Herrick
Assistant Attorney General
#300
Distributed to:
Donald Fulton, Esq.
Matthew J. Golden, Esq.
Hon. Greg Fischer
Bobbie Holsclaw, Clerk
[1] KRS 133.120(3)(e) provides: “The board of assessment appeals shall only hear and consider evidence which has been submitted to it in the presence of both the property valuation administrator or his or her designated deputy and the taxpayer or his or her authorized representative.”
[2] We do note our concern, however, that the Board intends to allow the PVA and the taxpayer to be present during closed deliberations “[s]hould the arbiters need additional information.” The presence of these parties would violate the express terms of KRS 61.810(1)(j). 06-OMD-262.
[3] 12-OMD-200, which the Board cites on this point, clearly states: “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.”