16-OMD-227

16-OMD-227

October 18, 2016

In re: Ray Gough/City of Richmond Codes Enforcement Board

Summary:  The City of Richmond Codes Enforcement Board did not violate the Open Meetings Act by taking final action in open session, but did violate the Open Meetings Act in not following the procedural requirements to go into closed session.

Open Meetings Decision

        The questions presented in this appeal are whether the City of Richmond Codes Enforcement Board (“Board”) violated the Open Meetings Act by taking final action in closed session and in not following the procedural requirements to go into closed session. We find that the Board did not violate the Open Meetings Act in taking final action in open session, but violated the Open Meetings Act in not following the procedural requirements to go into closed session.

        The Board held a meeting on June 15, 2016. According to the minutes of that meeting, the Board considered the condemnation of a building at 340 Edwards Ave. in Richmond owned by Hazel Enterprises LLC. The Board heard testimony relating to the condition of the property and the procedures utilized, and then convened in executive session for decision on the case. After returning from executive session, the Board found that the owner had seven days to demolish and remove the house at 340 Edwards Ave., otherwise the City of Richmond would do it, with costs assessed against the property. The minutes did not reflect the vote of the Board.

        Gough submitted a complaint to the Board on Sept. 8, 2016 on the grounds that the closed session was either not authorized, or the Board did not follow the required procedures for conducting a closed session. Gough requested “as a remedy that all matters discussed in this meeting in executive (closed) session, and all action taken based on that discussion that happened at this meeting pertaining to 340 Edwards Avenue be voluntarily voided by the board.” The Board responded on Sept. 13, 2016 that: 

The Codes Enforcement Board is a quasi-judicial body whose sole function is to adjudicate issues relating to a property owner’s violations of the City’s various codes which govern the condition of properties in the City. As such, KRS 61.810(1)(j) authorizes the Board to go into executive session to evaluate and discuss the evidence as it endeavors to reach a decision.

        Gough initiated this appeal on Sept. 29, 2016. Gough argued that: 1) that a code enforcement board does not fall within the exemption in KRS 61.810(1)(j) as a quasi-judicial body; 2) the Board is not authorized to go into closed session because “KRS 65.8815 specifically requires a code enforcement board to hold all meetings open to the public, and does not give any exceptions”; 3) the Board “failed to perform any of the prerequisite requirements that would authorize it to go into executive ‘closed’ session”; 4) the Board “improperly took final action in executive ‘closed’ session in violation of KRS 61.815”; and 5) the Board “failed to record the vote of each member in its minutes as required by KRS 65.8815.”

        The Board responded to the appeal on Oct. 6, 2016. The Board argued that it “is a public agency statutorily created for the express purpose of acting as a quasi-judicial body, and each case before it is an individual adjudication.” Regarding the formalities of closed sessions, the Board stated that KRS 61.815(2) provides that a “judicial or quasi-judicial body going into closed session for purposes of deliberation, as identified in KRS 61.810(1)(j) . . . , is not required to comply with the formalities of closed sessions.” The Board further argued that “even were that exclusion not expressly provided for, the courts have long held that a public agency’s substantial compliance with the provisions of the Act should not be deemed to be a violation so long as a complainant does not show prejudice resulting from it.” The Board denied that it took any final action in closed session, stating that “the Board reconvened in open session, announced that it had deliberated and reached a decision, and then stated, as appears in the minutes of the meeting, what that decision was.” Regarding not reflecting the vote of each member in the minutes, the Board conceded that Gough “was correct on this point,” but argued that “it would not seem that the Board’s final action should be declared void as a result. The Board, rather, should be instructed as to that point, and the Board is confident that such a clerical misfire will not again occur.”

        Gough replied to the Board’s response on Oct. 10, 2016, arguing that KRS 61.810(1)(j) only applies to deliberations where only agency members and staff are present, and that “this meeting had other people present other than the members of the agency’s governing body or staff. At the very least, page 3 of the official minutes show Steven Womack was present at the hearing for his case involving 327 Fifth Street.”

        KRS 61.805(2) provides that “‘public agency’ means: (a) every state or local government board, commission, and authority.” The Board is created by a local government under KRS 65.8808. Accordingly, it is a local government board and a public agency for the purpose of the Open Meetings Act.

        KRS 65.8815(5) provides that “all meetings and hearings of the Codes enforcement board shall be open to the public.” Gough argues that this statute “specifically requires a code enforcement board to hold all meetings open to the public, and does not give any exceptions.” Gough further argues that this “more specific statute controls over the more general statute.” While Gough is correct that “in resolving apparent conflict between two statutes, a primary rule of construction requires that precedence be given to the specific statutory provision over the more general,” Spees v. Ky. Legal Aid, 274 S.W.3d 447, 450 (Ky. 2009), it is also true that “rules of statutory construction require the interpretation that harmonizes the statutes and prevents a part of a statute from becoming meaningless or ineffectual.” Brooks v. Commonwealth, 217 S.W.3d 219, 223 (Ky. 2007). Here there is no conflict. KRS 65.8815(5) simply provides that meetings of Codes enforcement boards are open meetings. KRS 65.8815(5) is not the only law that applies to the Board; both 65.8815(5) and the Open Meetings Act apply.

        KRS 61.815(1) provides the procedures required for conducting closed sessions, including notice of the business to be discussed and the provision authorizing the closed session. KRS 61.815(2) provides that “public agencies and activities of public agencies identified in paragraphs . . . (j) . . . of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.” KRS 61.810(1)(j) exempts “deliberations of judicial or quasi-judicial bodies regarding individual adjudications.” The Board is a quasi-judicial body, as KRS 65.8808(1) provides that “a code enforcement board . . . shall have the power to issue remedial orders and impose civil fines as a method of enforcing a local government ordinance.” However, “while we acknowledge that KRS 61.815(2) lends itself to conflicting interpretations,” we have held that “agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.” 03-OMD-178. The Board is not exempt per se “such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies.” Id. Although we have recognized that “KRS 61.810(1)(j) permits the Board to go into closed session to consider and deliberate,” we have required that “such a closed session must conform in all particulars with the requirements of KRS 61.815(1)(a) through (d).” 05-OMD-017. Accordingly, the Board is required to observe the formalities of KRS 61.815(1) in going into closed session. In failing to observe the formalities of KRS 61.815(1) in going into closed session, the Board violated the Open Meetings Act.¹

        Gough further argues that the closed session does not qualify under KRS 61.878(1)(j) because persons other than the Board members and staff were present. The minutes state only that the Board convened in executive session in the conference room, and did not indicate the presence of anyone else in that executive session. As evidence in support of his argument, Gough argues that “page 3 of the official minutes show Steven Womack was present at the hearing for his case involving 327 Fifth Street.” The minutes do reflect that Steven Womack, a property owner, was present for the hearing concerning his property. However, Gough conflates being present at the hearing with being present in the closed session deliberations. The minutes reflecting the hearing concerning the property owned by Mr. Womack similarly indicate that the board convened in closed session in the conference room for deliberations, and do not indicate that Mr. Womack was present for those deliberations. Nothing in the record indicates that anyone outside of Board members and staff were present in the deliberations concerning the property owned by Hazel Properties LLC; the minutes only reflect that the property owner was not present for the hearing. The record before us therefore does not support a finding that KRS 61.878(1)(j) was waived by the presence of someone outside the Board and its agents in the closed session.

        Gough also argues that the Board took final action in closed session. The minutes of the Board meeting indicate that the Board returned from closed session before taking final action regarding the property. Based upon the record before us, we do not find sufficient evidence to conclude that the Board violated the Open Meetings Act by taking final action in a closed session.

        KRS 65.8815(4) provides that “the vote of each member on any issue decided by the board shall be recorded in the minutes.” The Board concedes that it did not comply with this requirement. However, KRS 65.8815(4) is not part of the Open Meetings Act, KRS 61.800-50. KRS 61.846(2) provides that “the Attorney General shall review the complaint and denial and issue . . . a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.” This office does not have the authority to enforce violations of KRS 65.8815(4) in the context of an open meetings appeal.

        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 must 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

                                                Matt James

                                                Assistant Attorney General

#397

Distributed to:

Ray Gough

Jaime Ford

Garret T. Fowles