Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Magoffin County Judge/Executive violated the Open Meetings Act in not holding regular meetings as required by KRS 67.090(2), and in not holding meetings at specified times and places which are convenient to the public. We find that the Attorney General does not have jurisdiction under the Open Meetings Act to address alleged violations of KRS 67.090. We also find that the Attorney General is unable in the context of an open meetings appeal to resolve a factual dispute as to whether meetings of a fiscal court were held at specified times and places which are convenient to the public. On June 7, 2017, Joshua R. Puckett submitted a complaint under KRS 61.846(1) to the Magoffin County Judge/Executive. 1 Puckett alleged that:
I believe that you are breaking the law by failing to have a regular fiscal court meeting each month as is required by KRS 67. I also believe that you are violation [sic] KRS 61 by failing to have meetings each month held at specific times and places that are convenient to the public.
The Court shall have a regular meeting once per month, you have failed to do that in a veiled attempt to keep your criminal friend and associate on the Court. The Fiscal Court of Magoffin County has only met in regular session two times since February 2017. You must remedy this situation immediately by not only setting a regular meeting date and time, but actually having the Fiscal Court meeting on that date and time.
On June 22, 2017, Puckett initiated this appeal, stating that "as of this date I have not received a response in any format from the judge's office. . . . The Magoffin County fiscal court has only had 2 regular meetings since February 2017." The Judge/Executive responded to the appeal, stating:
It has always been my attempt to comply fully with the Open Meeting [sic] Act.
All Magoffin County Fiscal Court Meetings are open to the public in a large room that has never been filled to capacity. All business is conducted in public with local press often in attendance and always notified of times and encouraged to attend. Executive sessions are entered into by motion and fiscal court business discussed in executive sessions relayed to the public. Any action taken is only done so after proper motion and majority approval after returning to public session via a fiscal court approved motion to do so. Only actions authorized in the statute are discussed in public and the only ones I can recall in this session of fiscal court are personnel records. All records requested by the public are provided in a timely manner and once when there was a question of timeliness it was resolved to the satisfaction of all parties.
In summary I am not in violation of the Open Meetings Act.
The Judge/Executive also attached a letter to Puckett apologizing for not responding to his June 7, 2017 letter due to a misunderstanding. 2
KRS 67.090(2) provides that "the fiscal court shall hold a regular term each month." However, KRS 61.846(2), which governs enforcement of the Open Meetings Act by the Attorney General, provides only 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." The Attorney General is thus not authorized to enforce the provisions of KRS 67.090(2), which is not part of the Open Meetings Act. See 08-OMD-012 n. 1 ("Our scope of review is narrowly defined by KRS 61.846(2) to issuing a decision, based upon the written record, indicating whether the public agency violated provisions of the Open Meetings Act --nothing more, nothing less. Accordingly, this office makes no finding relative to KRS 67.090 or any related issues . . . ." (citations omitted)); 02-OMD-78 ("KRS 67.090(1), requiring fiscal courts to hold their meetings 'at the county seat or at other county government centers,' was not enforceable in an open meetings appeal."); 99-OMD-213 ("KRS 67.090(1) . . . is not enforceable in an open meetings appeal."). Accordingly, as this office has no authority to enforce alleged violations of KRS 67.090 in the context of an open meetings appeal, we find no violation of the Open Meetings Act by the Judge/Executive.
Puckett also alleges that the Judge/Executive is not holding meetings of the fiscal court at times and places that are convenient to the public. KRS 61.820(1) provides that "all meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public." The Judge/Executive maintains that it has held meetings at times and places convenient to the public. "The Attorney General cannot resolve factual disputes in the context of an open meetings appeal." 16-OMD-124. See also 12-OMD-080 ("This office cannot resolve factual disputes in the context of an Open Meetings Appeal nor does it conduct hearings, gather evidence, interview witnesses, etc . in resolving disputes arising under the Open Meetings Act; only the courts are vested with authority to perform such functions."). In the limited context of an open meetings appeal, we cannot resolve the factual dispute of whether any meetings of the Magoffin County Fiscal Court were held at specified times and places convenient to the public. Accordingly, the limited record before us is not sufficient to find that the Judge/Executive violated the Open Meetings Act in not holding meetings of the fiscal court at times and places which are convenient to the public.
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.
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