Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Jefferson County Board of Assessment Appeals ("Board") violated the Open Meetings Act when it suspended a tax appeal hearing but did not give notice to the public of when it would reconvene that hearing. For the reasons that follow, we find that the Board did not violate the Open Meetings Act.
Donald Fulton, Esq., filed a complaint with the Jefferson County Board of Assessment Appeals by letter sent July 15, 2017. He stated that he was an observer at a hearing of Board Panel # 1 on the afternoon of July 12, 2017, and that the attorney for a property owner objected to his presence because she was about to present proprietary information regarding the company she represented. Mr. Fulton declined to leave the hearing. Mr. Clement Russell, whom we understand to be the chairman of this particular panel of the Board, met with Matthew Golden, Director, Civil Division, Jefferson County Attorney's Office (JCAO), and the taxpayer's attorney outside of the hearing room. When those individuals returned to the hearing room, it was announced that the remainder of the hearing would be rescheduled, but there was no time or place announced for when that hearing would reconvene. Mr. Fulton believes that it is a violation of the Open Meetings Act to not announce the time and place of the rescheduled portion of the meeting because it "essentially closed the meeting to [him]."
Matthew Golden, on behalf of the Board, provided a partial response to Mr. Fulton's complaint in a letter dated July 27, 2017. He explained that the "Kentucky Taxpayers' Bill of Rights," KRS 131.041 to 131.081, provides for certain privacy rights to taxpayers, and opined that it would be proper to side with the taxpayer in local board of assessment appeal hearings until either the Attorney General's Office or the courts clarify the issue (of whether a taxpayer has a right to privacy in records presented during an open meeting of a local board of assessment appeals where those tax records would otherwise be private under KRS 131.081(15) and KRS 131.190(1)(a)). Mr. Golden recommended that the Board review such claims of privacy on a case-by-case basis and take the open meeting to closed session for the limited purpose of protecting the private matter.
On August 7, 2017, Mr. Golden responded more fully to Mr. Fulton's complaint regarding the rescheduling of the July 12 hearing. Again, Mr. Golden explained that the taxpayer's attorney in that hearing, Michelle Whittington, had objected to the presence of Mr. Fulton in the hearing because she would be disclosing what she considered proprietary information (the square footage prices charged to tenants of her client). Ms. Whittington believed that disclosing that trade secret in the presence of Mr. Fulton would damage her client's business relative to its various tenants and its competition. Mr. Golden, Ms. Whittington, and Clement Russell, the Board chair of that panel, conferred on the matter outside of the hearing room. Mr. Golden questioned whether Ms. Whittington had a legal basis to support her position that confidential and proprietary information could be protected in an otherwise open meeting. Ms. Whittington indicated that she did not have that material with her at the hearing, but that she could send Mr. Golden some materials from her office in support of her position. Mr. Golden, likewise, indicated that he needed time to research the issue. Upon returning to the hearing room, Mr. Golden and Ms. Whittington agreed that the hearing should be continued to allow them to research the issue of whether confidential and proprietary information could be protected in an open meeting. The matter was continued by the Board. On August l, 2017, the Board reconvened the hearing and Ms. Whittington presented the entirety of her case in an open meeting. Mr. Fulton was not present on that date.
Mr. Golden's response of August 7 indicated that he was not certain of exactly what action of the Board was being challenged by Mr. Fulton and he provided responses to four different issues. From our reading of Mr. Fulton's appeal, we interpret his challenge to be that the hearing for this specific taxpayer was continued without giving public notice of a time, date, and location for the hearing to be continued. We therefore focus this decision on that complaint.
The public hearings of a county board of assessment appeals referred to in KRS § 133.120(3)(a), 1 Appeal Procedure, are a block of days determined by the tax assessment calendar. KRS § 133.030. 2 The board continues in session from one day to the next until all hearings are complete. KRS § 133.120(6) provides that "The property valuation administrator shall assess the property and immediately give notice to the taxpayer in the manner required by KRS 132.450(4), specifying a date when the board of assessment appeals will hear the taxpayer, if he or she so desires, in protest of the action of the property valuation administrator. " KRS 132.450(4) states that "The notice shall be given by first-class mail or as provided in the Kentucky Rules of Civil Procedure."
While the individual taxpayer is given notice of when his particular appeal is to be heard, there is no such notice to the public. The Open Meetings Act, at KRS 61.820(2), requires public agencies to "provide for a schedule of regular meetings by ordinance, order, resolution, bylaws or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." While KRS 133.030 thus determines when a county board of assessment appeals convenes, it does not give notice to the public of the specific time(s) and place(s) of its meeting. KRS 61.820(1) requires that: "All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public. . . " The record does not reflect whether the Board provides a public notice of specifically when and where the Board convenes for its annual regular meeting, but it is incumbent upon us to observe that such notice, at the very least, is required by the Open Meetings Act.
KRS 133.030 further states that the "board of assessment appeals shall continue in session only such time as is necessary to hear appeals." KRS 133.030(3). (Emphasis added). 3 In other words, a county board of assessment appeals is in continuous session until all appeals are heard. Individual taxpayers are notified, by letter, of when a particular panel of the board will hear their particular appeal, but there is no requirement in KRS 133.030, or the Open Meetings Act, for a county board of assessment appeals to notify the public of when a particular appeal is to be heard by the board. We disagree with Mr. Fulton's claim that not notifying him of when the hearing would be reconvened essentially closed the meeting to him. The record indicates that the hearing was reconvened on August 1 and that the meeting was open to the public. We find no violation of the Open Meetings Act by the Board in not giving public notice of when the hearing, that was suspended on July 12, 2017, would be reconvened. 4
Although not specifically stated in Mr. Fulton's complaint, we must address whether the Board, through JCAO, complied with the procedural requirements of the Open Meetings Act in timely responding to Mr. Fulton's complaint. Mr. Golden, on behalf of the Board, responded, via email, to Mr. Fulton's open meetings complaint on July 17, 2017, within the three day period required by KRS 61.846(1), stating: "I am in the process of reviewing your other latest missives and will respond." In that response, Mr. Golden was apparently referring to this complaint and an earlier open meetings complaint by Mr. Fulton dated July 12, 2017. Mr. Golden substantively responded to this open meetings complaint on July 27, 2017. Nevertheless, the agency did not notify the complainant within three days, as required by KRS 61.846(1), of its decision whether to remedy the alleged violation. In not responding to that complaint with a decision within three days, the Board violated the Open Meetings Act. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-OMD-029, p. 4. Simply put, KRS 61.846(1), as interpreted by the courts and prior decisions of this office, requires a public agency to issue a written response within three business days of receiving a complaint, notifying the complainant of its decision. Failure to notify the complainant of the public agency's decision within three business days constitutes a violation of the Open Meetings Act. Id. 09-OMD-213, 00-OMD-142; 97-OMD-43; 96-OMD-261. Merely stating that the agency will respond (as in Mr. Golden's email to Mr. Fulton on July 17, 2017) does not comply with the statute's requirement to notify the complainant of its decision. While we recognize that JCAO was attempting to answer both of Mr. Fulton's open meeting complaints in a comprehensive manner, the Act does not provide for delay beyond three days. As the agency's decision was not issued to Mr. Fulton until July 27, 2017, the Board procedurally violated KRS 61.846(1).
As a final matter, Mr. Fulton included correspondence in his appeal regarding what he considers to be harassment by the JCAO and/or the Board. We are uncertain as to whether Mr. Fulton intended this matter to be considered as part of his appeal but, having brought it to our attention, we will address it briefly. In his correspondence of July 27, 2017, Mr. Golden stated that there had been concerns that Mr. Fulton had been turning off the air conditioner in the Board's hearing room, and he advised Mr. Fulton that the Board Chairman may eject him from the meeting if he continues to do so. Mr. Fulton complained to the Board Chairman on July 28, regarding allegations that he had turned off the air conditioning system and, in the prior year, where he had asked attendees at a Board hearing to print their names. Mr. Fulton asked the Board Chairman to "look into the false allegations that Mr. Golden has relayed to me and get back to me as soon as possible?" Board Chairman Clement Russell responded to Mr. Fulton's complaint by letter dated August 1 and stated that he had inquired about the issues but was unable to establish the truth or falsity of the claims made in Mr. Golden's letter or Mr. Fulton's response, and that, as such, no action could be taken by the Board.
As the Attorney General has consistently recognized, the role of this office in adjudicating a dispute arising under the Open Meetings Act is narrowly defined by KRS 61.846(2), pursuant to which the Attorney General "shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850." Our decisions "involve the application and interpretation of the requirements of the Open Meetings Act, and are in the nature of questions of law." 00-OMD-142, p. 6. As with appeals arising under the Open Records Act, "this office is not empowered to resolve disputes of a factual nature in the context of an Open Meetings appeal." 10-OMD-135, p. 3; 11-OMD-023. Our review is confined to the written record. See 00-OMD-96; 05-OMD-198. The Attorney General "does not conduct hearings, gather evidence, conduct witness interviews, etc. in resolving disputes arising under the Open Meetings Act [.]" 10-OMD-135, p. 4. As in 05-OMD-096, 07-OMD-253, and 08-OMD-234, to name a few, this office is presented with insufficient facts and is unable to conclusively resolve whether the events occurred as complained of by Mr. Fulton and so we render no opinion on these particular complaints.
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.
Footnotes
Footnotes
1 KRS 133.120(3)(a) states: "The board of assessment appeals shall hold a public hearing for each individual taxpayer appeal in protest of the assessment by the property valuation administrator filed in accordance with the provisions of subsection (2) of this section, and after hearing all the evidence, shall fix the assessment of the property at its fair cash value."
2 KRS 133.030 establishes when county boards of assessment appeals convene and so states, in pertinent part:(1)The county board of assessment appeals shall convene each year at the county seat no earlier than twenty-five (25) days and no later than thirty-five (35) days following the conclusion of the tax roll inspection period provided for in KRS 133.045; except that no meeting shall be held until the tax roll has been completed and the inspection period has been held as provided by law, or until revaluation of the property has been completed by the property valuation administrator at the direction of the Department of Revenue as provided by KRS 132.690 or by the department itself as provided by KRS 133.150. . .. . .(3) The board of assessment appeals shall continue in session only such time as is necessary to hear appeals. The board shall not continue in session more than one (1) day, if there are no appeals to be heard, nor more than five (5) days after it convenes in each year, unless an extension of time is authorized by the Department of Revenue upon request of the county judge/executive.
3 As KRS 133.030(3) provides that the board "shall continue in session" until all appeals are heard, the suspension of an appeal hearing, and then subsequent reconvening of that hearing on a different day during that continuous session does not invoke the requirements of a "special meeting," pursuant to KRS 61.823.
4 As we have decided this appeal on other grounds, we will not review Mr. Golden's arguments on the tension between the privacy rights of taxpayer information presented during open meetings of public agencies, and the requirement for hearings of county boards of assessment appeals to be open to the public.