Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Donald Fulton initiated this Open Meetings Appeal by letter dated June 29, 2017, challenging the denial by the Oldham County Board of Assessment Appeals ("Board") of his June 15, 2017, complaint 1 alleging that he was illegally excluded from a meeting of the Board on June 14, 2017, at which Oldham County Judge Executive David Voegele conducted the swearing in ceremony for the members and Oldham County Clerk Julie Barr and the Board reviewed the property assessments of Oldham County Property Valuation Administrator ("PVA") employees. The County Clerk received Mr. Fulton's complaint on June 19, 2017, and Oldham County Attorney John K. Carter issued a timely written response on behalf of the Board on June 21, 2017. See KRS 61.846(1). Mr. Carter asserted:
No violation of the OMA occurred as alleged in your complaint. Members of the [Board] and the County Clerk, Julie Barr, assembled at 9:00 a.m. in the office at which the appeals hearings were to be held for the purpose of the new board members being sworn by the Oldham County Judge Executive David Voegele, which was all that occurred at that time. No issues regarding your appeal or any other appeal were discussed at that assembly or any other issues regarding PVA assessments. Therefore no OMA violation occurred.
By letter dated June 21, 2017, and received on June 23, 2017, Mr. Fulton cured the deficiency in his initial complaint by proposing a remedy for the alleged violation(s) per KRS 61.846(1); specifically, Mr. Fulton asked the Board "to provide a complete written record of what transpired during the meeting [from which] I was excluded, to the best of your ability. If any minutes were taken, then have a copy sent to me." Mr. Fulton also requested to inspect materials that were reviewed, if any, that would not be excluded from application of the Open Records Act.
By letter dated June 27, 2017, Mr. Carter supplemented the Board's initial response. Mr. Carter reiterated his original summary of the meeting; he attached a copy of the certification of the swearing in ceremony. For the first time, Mr. Carter advised that the Board "also reviewed assessments on employees of the PVA as required by law to ensure that employees of the PVA, who are property owners, have their property assessed at full market value." Mr. Carter also enclosed a copy of the assessments that were reviewed by the Board. However, Mr. Carter advised that no minutes were recorded by the County Clerk for this "assembly" since there was no "meeting" of the Board until his appeal, the "first and only docketed item." On appeal, Mr. Fulton emphasized the seeming contradiction by the Board regarding the subjects discussed between 9:00 a.m. and 9:30 a.m. on June 14, 2017, prior to its review of his appeal. Mr. Fulton correctly observed that neither of the responses by the Board cited a statutory exception that would justify his exclusion from the meeting nor did the Board deny that a quorum of the Board was present. Based upon the following, this office agrees with Mr. Fulton regarding the Board's apparent misconception that a member of the public may be properly excluded from a meeting if their appeal is not being reviewed.
KRS 133.020(1)(a) authorizes the creation of a county board of assessment appeals "composed of reputable real property owners residing in the county at least five (5) years." Pursuant to KRS 133.020(1)(c)1.:
The board shall consist of three (3) members, one (1) to be appointed by the county judge/executive, one (1) to be appointed by the fiscal court, and one (1) to be appointed by the mayor of the city with the largest assessment using the county tax roll or appointed as otherwise provided by the comprehensive plan of an urban-county government.
KRS 133.020(1)(e)1. authorizes the creation of temporary panels "[i]f the number of appeals to the board of assessment appeals filed with the county clerk exceeds one hundred (100)...." These panels consist of three members "having the same qualifications and appointed in the same manner as the board members. " KRS 133.020(1)(e)2.
Significantly, KRS 133.030 governs the meetings of such boards and, in relevant part, states:
(2) The first regular meeting day of the board shall be devoted to the orientation and training program provided for in KRS 133.020(5), to a review of the assessment of the property valuation administrator and his deputies, and to a review of the appeals filed with the county clerk as clerk of the board, including a review of recent sales of comparable properties provided in accordance with the provisions of subsection (1) of this section, and an inspection of the properties involved in the appeals when in the opinion of the board such inspection will assist in the proper determination of fair cash value.
(Emphasis added.) As in 15-OMD-154, this office finds that a board of assessment appeals "is a local government board that is created pursuant to state statute whose governing body is appointed by a public agency, the [fiscal court], and two local officers, specifically, the county judge/executive and the mayor. It therefore falls squarely within the definition of the term 'public agency' " found at KRS 61.805(2)(a),(d),(e), and (f). 15-OMD-154, pp. 4-5. Because the Board is a "public agency, " in the "absence of any conflicting legal authority or exclusionary statutory language," the Board is also "subject to all requirements established in KRS 61.880 to KRS 61.848." 15-OMD-154, p. 5; 16-OMD-183.
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." 2 The Board has not denied Mr. Fulton's allegation that on June 14, 2017, he was asked to leave at 9:00 a.m. or that a quorum of the agency met for the purpose of "the new members being sworn" by the Judge Executive and to "review assessments on employees of the PVA" as required under KRS 133.030(2). Similarly, in 16-OMD-214, the complainant alleged that the Bourbon County Board of Assessment Appeals violated the Open Meetings Act by excluding members of the public from portions of a public meeting in which it conducted the statutorily required orientation and training program, swearing in of new members, and property assessments of PVA employees. The Board there advised that the complainant was only excluded from that portion of the meeting in which it conducted training and orientation.
Citing 15-OMD-154, and quoting KRS 61.810(1), the Attorney General reasoned as follows:
It is undisputed that a quorum of the Board's members convened in a closed meeting with the PVA to receive training regarding their public functions. In 03-OMD-178, the Spencer County Board of Education, at the beginning of its meeting, had held a private training session with its general counsel regarding hearing procedures. We rejected the board's claim that those "procedural matters attendant to the hearing" did not constitute public business, and we likewise reject that argument here. Furthermore, since the individual hearings were clearly public business, it was unlawful to exclude [the complainant] and the rest of the public from those hearings. Therefore, we conclude that the Board acted in violation of KRS 61.810(1) by conducting a closed meeting without legal authority.
We note that the minutes and the record are inconclusive as to whether appellants before the Board were directed to leave after their individual appeals were concluded. If so, however, this was in violation of the Open Meetings Act just as was the directive for appellants to wait in the hall. The same is true of the swearing in of members and selection of a chairman, which do not appear in the meeting minutes; these are public acts, and if they were in fact performed in a closed session, as alleged by [the appellant], this was a further violation of KRS 61.810(1) .
16-OMD-214, p. 4 (emphasis added).
The relevant facts are undisputed in this case; the instant appeal centers on the legal implications thereof, namely whether the Board's June 14, 2017, "assembly" constituted a "meeting" within the meaning of KRS 61.805(1) and the Board thus violated KRS 61.810(1) in excluding a member of the public from the meeting. Mr. Fulton was asked to leave when a quorum of the Board convened on June 14, 2017, for the purpose of swearing in the new board members and reviewing the property assessments of PVA employees, both of which constituted public business. In conducting a closed meeting without legal authority, the Board violated the Open Meetings Act, specifically KRS 61.810(1); 3 likewise, the Board violated the Act in failing to record minutes per KRS 61.835, "setting forth an accurate record of votes and actions taken . . . [.]" If at the meeting in question nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting." 95-OMD-64, p. 4. Such minutes are subject to public inspection. Id.; 15-OMD-033. The peripheral issues that Mr. Fulton raised in his complaint and reiterated on appeal concerning the June 8, 2017, inspection of his client's property cannot be resolved in this forum. The Attorney General is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4; 10-OMD-120 (Attorney General lacked authority to order a city to enforce Code Enforcement Board orders); 15-OMD-142. Accordingly, this office makes no finding on those issues.
Either party may appeal this decision 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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