Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Oldham County Board of Assessment Appeals ("Board") violated the Open Meetings Act, specifically KRS 61.810(1)(j), when it allowed the Oldham County Attorney into the closed session where the Board deliberated an appeal after the County Attorney participated in the hearing phase of the appeal. For the reasons that follow, we find that the Board did not violate the Open Meetings Act.
Donald Fulton, Esq., states that he presented an appeal on behalf of his clients before the Board on June 14, 2017. Prior to the hearing, the Oldham County Property Valuation Administrator introduced John Carter, Oldham County Attorney, to Mr. Fulton and stated that he would be representing the Property Valuation Administrator ("PVA") during the hearing. According to Mr. Fulton, Mr. Carter acted as the PVA's attorney in the hearing by directly asking questions of him, on behalf of the PVA, after Mr. Fulton had presented the appeal to the Board. After the hearing was concluded, the Board went into closed session to deliberate the appeal. Mr. Fulton and the PVA were excluded from the closed session deliberations of the Board, but the County Attorney was allowed to be present during that closed-door session. Mr. Fulton sent a letter to the Chairman of the Board, dated June 14, 2017, complaining that the County Attorney's presence in the closed-door session of the Board was a violation of KRS 61.810(1)(j), 1 which essentially excludes most everyone who is not a member or staff of the Board from being in the deliberative session.
Mr. Carter responded on June 21, 2017, on behalf of the Board, stating "If called upon, the Oldham County Attorney advises the [Oldham County Board of Assessment Appeals] and the County Clerk regarding any question of law that may arise during any official session of [Oldham County Board of Assessment Appeals]." He further stated that the "County Attorney does not represent the Property Valuation (PVA) except in certain instances and then only at the direction of Fiscal Court, which did not occur here. OAG 91-231."
After receipt of notification of the open meetings appeal, Mr. Carter responded on behalf of the Board. He cited OAG 91-231 in support of his position that the County Attorney represents the interest of the state and county in assessment appeals, and does not represent the PVA, 2 except in certain circumstances and then only at the direction of the Fiscal Court -- circumstances which he stated did not occur in this matter. Mr. Carter cited to KRS 133.120(11) which states:
The county attorney shall represent the interest of the state and county in all hearings before the board of assessment appeals and on all appeals prosecuted from its decision. If the county attorney is unable to represent the state and county, he or she the fiscal court shall arrange for substitute representation. 3
Mr. Carter also stated that the county attorney is required to provide legal advice to all county boards, including the Board of Assessment Appeals, and to all county officials, including the county clerk. Further, "[t]he County Attorney therefore advises the Board and the County Clerk regarding any question of law that may arise during the appeal process, including any deliberative sessions. Were it otherwise, the County Attorney could not fulfill his obligation to the Board or the County Clerk. "
Richard W. Bertelson, staff attorney, Office of Legal Services, Department of Revenue, provided a letter in response to notification of the appeal from this office. He acknowledged that the Department of Revenue is not a party to the appeal, but stated that, pursuant to KRS 133.020(5), the Department provides training materials annually to Kentucky's PVA's for them to present to the counties' boards of assessment appeals. The training materials provided by the Department addresses the Open Meetings Act. Mr. Bertelson explained that the Department's interpretation of KRS 133.120(11) "has always been that the county attorney has the specific, statutory duty to represent the county Property Valuation Administrator ("PVA") before the [Board of Assessment Appeals]." Mr. Bertelson referenced KRS 69.210(3), regarding the duties of the county attorney, which states:
The county attorney shall give legal advice to the fiscal court or consolidated local government and the several county or consolidated local government officers in all matters concerning any county or consolidated local government business within their jurisdiction. He or she shall oppose all unjust or illegally presented claims.
Mr. Bertelson's position is that the language of KRS 69.210(3), upon which Mr. Carter implicitly, but strongly, relies, is much less specific than that of KRS 133.120(11), and "in matters of statutory construction, the more specific statute controls over the less specific." This interpretation of the statutes is the basis of the Department's understanding that the county attorney represents the PVA in hearings before boards of assessment appeals. 4
Analysis : KRS 61.810(1)(j) prohibits, in the deliberative session of judicial and quasi-judicial bodies, the presence of "the person involved" and "his representatives." If the Oldham County PVA is considered to be a "person involved" in the appeal, and, if the County Attorney is considered to be her representative, then Mr. Carter would be barred from being in the closed session of the Board. However, as Mr. Carter pointed out, under KRS 133.120(11) he represents "the interests of the state and county" before the Board; the statute does not dispositively state that he represents the PVA before the Board. Both KRS 133.120(11) and KRS 69.210(3) should be read in conjunction with the Open Meetings Act. "When construing multiple statutes, it is our duty to read all statutes in harmony with one another in order to effectuate all statutes, if possible." Castle v. Commonwealth, 411 S.W.3d 754, 757-58 (Ky. 2013). Construing these statutes to be read in harmony, Mr. Carter could reasonably be seen to have been representing the interests of the state and county , and not representing the PVA before the Board. Under that interpretation we cannot conclusively say he should be barred from the closed deliberative session of the Board.
This office has long held that "selective admission" to closed sessions of public agencies is impermissible. See, e.g., OAG 92-146 (holding that "a public meeting of a public body is either open to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act, and there is no principle of selective admission set forth in the Open Meetings Act" ); see also KRS 61.810(1) (declaring that "[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"); accord 00-OMD-219. Nevertheless, this office has, on occasion, recognized that the presence of a non-member, including an employee of the agency, the attorney for the agency, or a third party, does not constitute selective admission where that employee, attorney, or third party's presence is necessary to the conduct of the closed session. Thus, an agency clerk may be needed to take notes during a closed session, an agency attorney may be needed to provide advice on legal issues, and a third party may be needed to "contribute information or advice on the subject matter under discussion." 5 00-OMD-219, p. 5. Further, "In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session. " OAG 77-560, p. 2.
If the presence of the county attorney was required in the closed session, the Board cannot be said to have violated the Open Meetings Act by permitting him to remain, but the Board must explain the necessity of his presence. From the record in this appeal, we understand that, in the closed session, Mr. Carter gave his opinions on critical issues regarding the appeal. Further, KRS 69.210(3) places a statutory duty on the county attorney to give advice to all county officers, which includes the county clerk. County clerks are likewise statutorily given the duty to be the clerk of the county boards of assessment. KRS 133.030(2). The record shows that the Oldham County Clerk attended the meeting on June 14, 2017, and that she has been copied on the correspondence from Mr. Carter. Had the Oldham County Clerk disagreed with Mr. Carter's representations to this office, we assume that she would have notified us. Although we have not found a specific statutory reference that requires the County Attorney to give advice to "all county boards" 6, we also note that the Chairman of the Oldham County Board of Assessment Appeals has likewise been copied on correspondence from Mr. Carter in this appeal and that she has also not advised our office of any disagreement with Mr. Carter's claim that he is required to give advice to the Board on questions of law that may arise during the appeal process. We find that, under these facts, the Board did not violate the Open Meetings Act by allowing the Oldham County Attorney to be present in its closed deliberative session on June 14, 2017.
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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