16-OMD-260
December 1, 2016
In re: Donald Fulton/Jefferson County Board of Assessment Appeals
Summary: Because the complainant did not submit a written complaint to the presiding officer of the public agency per KRS 61.846(1), the Attorney General must decline to render a decision under the Open Meetings Act.
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Assessment Appeals violated the Kentucky Open Meetings Act in failing to comply with the requirements of the Act as it pertained to a hearing held on July 26, 2016. Because the complainant did not submit a written complaint to the presiding officer of the City pursuant to KRS 61.846(1), as required to perfect an Open Meetings appeal, this office must decline to render a decision under the Open Meetings Act.
In his letter of appeal, attorney Donald Fulton alleges a violation of the Open Meetings Act. However, this office is precluded from rendering a decision under the Open Meetings Act where the appeal has not been perfected consistent with the mandatory language of KRS 61.846. In relevant part, KRS 61.846(1) provides:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall 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.
(Emphasis added.)
Mr. Fulton states that his complaint on behalf of his clients “was received by the Jefferson County Attorney’s Office (JCAO) on November 3, 2016.” He encloses a copy of this complaint, dated November 1, 2016, and addressed to Jefferson County Attorney Mike O’Connell, as well as the response from Assistant County Attorney Sarah Stewart Ashburner dated November 7, 2016. Ms. Ashburner replied:
Please be advised, KRS 61.846(1) provides that a person seeking to enforce the Kentucky Open Meetings Act shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. As stated in previous correspondence, JCBAA is staffed by the Jefferson County Clerk and the Jefferson County Property Valuation Administrator (PVA). The JCAO does not preside over PVA tax appeals.
Accordingly, JCAO is not the appropriate party to receive the above referenced Complaint of Open Meeting Violation. I suggest you forward your complaint to Tony Lindauer, Jefferson County PVA, Glassworks Building, 815 W. Market Street, Suite 400, Louisville, Kentucky 40202 or Bobbie Holsclaw, Jefferson County Clerk, 527 W. Jefferson Street, Louisville, Kentucky 40202. Please do not hesitate to contact me if you have any questions or comments.
(Emphasis in original.) The record does not indicate that Mr. Fulton attempted to route his open meetings complaint to any other person or office.
After this appeal was initiated on November 10, 2016, notice was given by this office to the Jefferson County Attorney’s Office, the Jefferson County Clerk, and the Jefferson County Property Valuation Administrator. A response dated November 16, 2016, was received from Harold P. Thomas, Chief Financial Officer, Office of the Jefferson County Property Valuation Administrator. Mr. Thomas states:
[T]he Jefferson County Property Valuation Administrator is not the appropriate party to receive a Complaint of Open Meeting Violation for the Jefferson County Board of Assessment Appeals (JCBAA). The presiding officer of the JCBAA is the Mayor of Louisville Jefferson County Metro Government. Complaints should be addressed to:
The Honorable Greg Fischer, Mayor
Metro Hall
527 West Jefferson St
Louisville, KY 40202.
No other response to the appeal was received.
On November 26, 2016, Mr. Fulton replied by attaching an e-mail he received from Richard W. Bertelson, III, Staff Attorney III, Office of Legal Services, Department of Revenue, in which he claims Mr. Bertelson told him “that I should file my open meeting complaint [with] the Jefferson County Attorney’s Office.” Mr. Fulton does not attach the e-mails to which Mr. Bertelson was responding, but evidently Mr. Fulton had asked him some procedural questions regarding the JCBAA’s compliance with the Open Meetings Act. An examination of his response reveals that in fact Mr. Bertelson merely told Mr. Fulton that “the Department of Revenue is not the venue through which to address your Open Meetings Act questions”; that “[p]ursuant to KRS 133.120(11) the Jefferson County [A]ttorney represents the interests of the state and county in all hearings before the Jefferson County Board of Assessment Appeals and in all appeals therefrom”; and “your questions and concerns regarding the Jefferson County board’s meeting processes should be directed to the Jefferson County Attorney.” At no point did Mr. Bertelson suggest that the Jefferson County Attorney was the “presiding officer” of the Board of Assessment Appeals to whom complaints must be submitted under KRS 61.846(1).1
On November 28, 2016, this office received a response to the appeal from Ms. Ashburner of the JCAO. She reiterates that the “JCBAA is staffed by the Jefferson County Clerk, and that the JCAO does not preside over tax appeals,” and adds: “The JCBAA is presided over by the local board of tax appeals.” This last sentence is an assertion not previously made by the JCAO.
Under KRS 133.020(1)(c), a county board of assessment appeals consists of three members, one being appointed by the county judge/executive, one by the fiscal court, and one by the mayor of the city with the largest assessment. The members serve staggered three-year terms.
Mr. Fulton states as his understanding that “since the JCBAA is not in session, the Board [sic] hearing my clients’ case (multiple JCBAA Boards [sic] were hearing cases), is dissolved. In addition, it is my understanding that multiple JCBAA Boards [sic] hearing appeals had no designated presiding officers including the Board [sic] hearing [clients’] appeal.” We presume that when Mr. Fulton refers to multiple “Boards” he is actually describing temporary panels of the JCBAA, which are authorized to be appointed by KRS 133.020(1)(e)1. in cases of high appeal volumes. While Mr. Fulton may be correct that temporary panels are dissolved while not in session, it is evident from KRS 133.020(1)(c) that the JCBAA itself is a continuing body, subject only to the annual appointment of a new member.
KRS 133.020(1)(e)4. provides: “The county judge/executive shall designate one (1) of the members of the board of assessment appeals to serve as chairman of the board.” In regard to temporary panels, KRS 133.020(1)(e)5. provides that “the chairman of the board of assessment appeals shall designate one (1) member of each additional panel as chairman of the panel.” Irrespective of the transitory existence of temporary panels, however, it seems that the “chairman of the board” designated by the county judge/executive pursuant to KRS 133.020(1)(e)4. would continue to serve in that capacity, at least until that time when a member of the board is replaced. Yet the record on appeal does not reflect for certain whether the JCBAA had a chairman in place at the time of Mr. Fulton’s appeal.
The claims made by the JCAO and the PVA’s office are conflicting regarding whether the mayor, the county clerk, the PVA, or some other person should be considered the “presiding officer” of the JCBAA. It appears to us, however, that under ordinary circumstances the “presiding officer” under KRS 61.846(1) would be the chairman of the board, designated pursuant to KRS 133.020(1)(e)4. Furthermore, it appears that in the absence of a current chairman of the board, the role of “presiding officer” would revert to the county judge/executive, who has the power to designate the chairman.
Ultimately, we need not decide this issue conclusively in the present appeal, since it is clear that the only party to whom Mr. Fulton’s complaint was addressed was the Jefferson County Attorney, who is definitely not the presiding officer of the JCBAA. Therefore, the Attorney General cannot rule upon an alleged violation of the Open Meetings Act until Mr. Fulton properly perfects an appeal consistent with the mandatory language of KRS 61.846(1).
In so ruling, we distinguish 09-OMD-132, in which the appellant submitted his complaint to the Chairman of the Kentucky Board of Home Inspectors; the board failed to respond; and board counsel later argued that the complaint should have been submitted to the commissioner of the Department of Housing, Buildings and Construction, to which the board was administratively attached. In this case, by contrast, JCAO did respond to the complaint and gave its opinion as to who the presiding officer was, but Mr. Fulton attempted no action based on those representations. Furthermore, the JCBAA is not administratively attached to the JCAO; thus, this is not a situation in which “government officers … ‘bury their heads in the sand’ to public matters with which they are charged.” Baker v. Jones, 199 S.W.3d 749, 752 (Ky. App. 2006).
Likewise we distinguish 13-OMD-012, in which the appellant’s complaint concerning the actions of the University of Louisville’s Residency Review Committee was submitted to the university president “as the ‘presiding officer’ of the University.’” The university responded to the complaint and raised no procedural defense until the matter was on appeal. We noted that the Residency Review Committee was “a committee of the University under the direct authority of its President,” and thus concluded that any deficiency under KRS 61.846(1) was not material. Here, the JCBAA is not under the direct authority of the JCAO, and the procedural issue was raised in response to the complaint.
Accordingly, we find in this case that the procedural requirements of KRS 61.846(1) have not been met. We note that nothing in the statutes precludes Mr. Fulton from submitting a new complaint to the proper presiding officer of the JCBAA in which he restates the circumstances constituting the alleged violation and proposes remedial measures. 00-OMD-156. Given the widely varying representations that have been made in this matter as to who is the “presiding officer” of the JCBAA, a number of potential recipients would likely be deemed substantially compliant with KRS 61.846(1).
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
James M. Herrick
Assistant Attorney General
#466
Distributed to:
Donald Fulton, Esq.
Bobbie Holsclaw, County Clerk
Tony Lindauer, PVA
Sarah Stewart Ashburner, Esq.
[1] Furthermore, we would have no reason to regard a statement from a Department of Revenue attorney as in any way conclusive of an issue under the Open Meetings Act.