Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Assessment Appeals ("JCBAA," "the Board") violated the Open Meetings Act on August 1, 2017, in connection with an inspection of a taxpayer's personal residence pursuant to KRS 133.120(13). For the reasons that follow, we find insufficient evidence to conclude that the Board violated the Act.
The JCBAA meets annually in continuing session, pursuant to KRS 133.030, to hear taxpayer appeals "in protest of the assessment by the property valuation administrator. " KRS 133.120(3)(a). In this case, the issue before the Board was the value as of January 1, 2017, of a piece of property purchased on behalf of Governor Matt Bevin in March 2017.
KRS 133.120(13) provides: "The county board of assessment appeals shall physically inspect a property upon the request of the property owner or property valuation administrator. " On August 1, 2017, the Board members conducted such an inspection. Prior to the inspection, on that same date, the Board issued a "Preliminary Ruling" signed by Chairman Clem Russell, which stated as follows:
The Jefferson County Board of Assessment Appeals, upon the request of the parties to this action, has determined that the physical inspection of the Subject Property required by KRS 133.120(13) is not a public meeting under the Open Meetings Act where neither the Board nor the parties discuss any issues germane to the matter aforesaid , and tentatively agree to reconvene in an open meeting for purposes of addressing any issues that may or may not arise as a result of said physical inspection, subject to the attendant notice requirements.
(Emphasis added.)
By letter dated August 2, 2017, attorney Jeremy S. Rogers, on behalf of the Courier-Journal , submitted a written complaint to Board Chairman Clem Russell, stating that at the property inspection "Courier-Journal reporter Tom Loftus was present and objected to the closure of the meeting. Kentucky State Police Lieutenant Chris Crockett met Mr. Loftus at the entrance to the property and prohibited Mr. Loftus and other news media representatives from attending or observing the meeting." He alleged two violations of the Open Meetings Act:
First, the Board violated the Open Meetings Act by excluding the public and members of the press from its August 1, 2017 property inspection meeting. The Board's "Preliminary Ruling" is simply wrong to suggest that the property inspection was not a "meeting" under the Open Meetings Act. . . . The "Preliminary Ruling," which was issued before the Board met to conduct the property inspection, predicted that the Board and the parties would not "discuss any issues germane to the matter" during the property inspection. That suggestion makes no sense, and it is irrelevant.
. . . .
Second, it appears the Board also violated the Open Meetings Act by conducting another secret meeting which resulted in the "Preliminary Ruling" signed on August 1, 2017, which preceded the Board's property inspection meeting. . . . There is nothing in [KRS 133.120] authorizing the Board's chairman to act unilaterally on any matters. As such, it appears the Board must have conducted a meeting and must have taken a vote to adopt the August 1, 2017 "Preliminary Ruling." Yet, the Board failed to comply with any of the public notice and public attendance requirements of the Open Meetings Act in connection with any such meeting and vote.
As a remedy for the alleged violations, he proposed that the Board supply recordings or a "detailed account of what took place in the meetings," admit its violations, and "commit in writing" to comply with the Act in the future.
On August 3, 2017, Chairman Russell responded in writing as follows:
The Jefferson County Board of Assessment Appeals has reviewed your complaint and stands by its previous determination in its Preliminary Ruling, issued pursuant to KRS 133.120(7) and also enclosed for your records, that under the conditions expressed therein the physical inspection mandated by KRS 131.120(13) [ sic ] was not a public meeting under the Open Meetings Act.
(Emphasis in original.) The Courier-Journal initiated this appeal on August 9, 2017, reiterating its previous allegations and further arguing that the Board's response to the complaint was deficient.
It is clear that the assembly of the Board for the property inspection was a "meeting" within the definition in KRS 61.805(1):
"Meeting" means all gatherings of any kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.
KRS 61.810(1) provides (with several exceptions, which have not been invoked here):
All 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[.]
There is no dispute that a quorum of the Board was present at the property inspection, or that the property was not made open to the general public. The question, therefore, is whether "any public business [was] discussed" or "any action [was] taken by the agency" during the inspection. "Action taken" is defined by KRS 61.805(3) as follows:
"Action taken" means a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body[.]
It has not been alleged that the Board did any of these things during the property inspection. Thus, the issue is whether public business was discussed.
"Public business is not simply any discussion between two officials of the agency. Public business is the discussion of the various alternatives to a given issue about which the board has the option to take action ."
Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998) (emphasis added). In the Board's Preliminary Ruling, it contemplated that "neither the Board nor the parties [would] discuss any issues germane to the matter." There is nothing in the record to suggest that this restriction was not adhered to.
The Courier-Journal cites a public statement by Jefferson County PVA Tony Lindauer in which he "complained that the physical inspection only examined the first floor and basement of the house," and argues:
[I]t is not believable that all of the Board members, PVA staff members, attorneys, and others who attended the inspection meeting would participate in complete silence for the entire duration of the meeting. In light of Mr. Lindauer's public comments . . . it appears that certainly was not the case. At a minimum, it appears that PVA representatives or Board members asked to see the second floor, third floor, and detached structure on the property but were denied access.
Assuming these types of utterances took place, they would not, standing alone, constitute discussion of "public business" as defined in Yeoman .
In 01-OMD-110, we stated that a public agency "must avoid any whispered, inaudible, or closed discussion of the public's business." Nevertheless,
unreasonable restrictions on communications between members of [the] public agency, and members of the agency and staff, cannot be imposed, even in an open public forum. Hence, if the matters under discussion are purely personal (such as a request for a glass of water), or are aimed at securing staff support or assistance (such as a request that a document be retrieved from the member's office), the Open Meetings Act is not abridged by discreet communications.
Id. In this case, an incidental request by a member of the public agency to see other areas of the property is more closely analogous to the hypothetical requests mentioned in 01-OMD-110 than it is to "discussion of the various alternatives to a given issue about which the board has the option to take action." Yeoman, supra. Accordingly, we cannot conclude that "public business" was discussed.
We note that this is a case of first impression, based on a scant supply of evidence. If it were established that the persons present at the inspection disregarded the strictures of the Preliminary Ruling and discussed public business, then such a meeting, if closed to the public, would violate KRS 61.810(1) . A further complication, even if the meeting were opened to the public, would be posed by KRS 61.820(1), which requires that all meetings of public agencies "be held at specified times and places which are convenient to the public." We have ruled on more than one occasion that holding a public meeting at a private residence violated this provision. 13-OMD-186; 16-OMD-178. Therefore, although we do not find a violation in the present appeal, any board conducting such an inspection on private property should be mindful of its duty to refrain from any discussion of the public business on that occasion.
In its response to this appeal, dated August 14, 2017, the Board argues:
Under a plain reading of KRS 133.120, read in conjunction with the Open Meetings Act, by the mere exercise of a right to due process, a taxpayer could potentially subject his or her private residence, the sanctity of his or her home, to the scrutiny of public view, and all the negative repercussions attendant thereto. This plain reading could produce an injustice, and should be contemplated in reaching a decision.
We agree with this statement insofar as it is not clear that the legislature, in enacting or amending either KRS 133.120(13) or KRS 61.810(1), directly considered the impact of one provision upon the other. In determining that the Board would violate the Open Meetings Act if it discussed public business during the physical inspection, we do not imply that KRS 61.810(1) imposes any obligation upon taxpayers to open their personal residences to the general public when they (or the PVA) exercise their right to an inspection under KRS 133.120(13). Rather, we merely conclude that a board of assessment appeals would violate the Open Meetings Act by conducting, in a private place, the type of meeting that the Act requires to be open to the public. Cf. 17-OMD-161.
There is inadequate evidence in the record to determine whether, as the Courier-Journal suggests, the Preliminary Ruling was the product of a secret meeting of the Board. Although the Courier-Journal's letter of appeal points out that the physical inspection was "an integral part of the Board's required public hearing process" (emphasis omitted), we have no record--nor even a specific allegation by either party--of what did or did not transpire at the public hearing . If the Preliminary Ruling was requested by the parties in open session and voted upon by the Board during the public meeting, then there was no violation of the Act. If, however, a quorum of the Board met in private to discuss, formulate, or vote on its ruling, such a meeting would presumptively constitute a violation. We are unable, based on the inadequate record, to find whether such a violation occurred.
As for the Courier-Journal's argument that the Board's August 3, 2017, response to its complaint was legally deficient as to the second alleged violation, we note that the relevant portion of KRS 61.846(1) merely provides: "An agency's response denying, in whole or in part, the complainant's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply." (Emphasis added.) In its response, the Board cited KRS 133.120(7) and 133.120(13) (though incorrectly listing the latter as KRS 131.120(13)), explaining its position that a property inspection under KRS 133.120(13) "was not a public meeting under the Open Meetings Act" and that its Preliminary Ruling was made pursuant to KRS 133.120(7). The Courier-Journal contends that the Board should have provided more specific facts in its response as to the second alleged violation in the complaint. Nevertheless, the response complied with the express terms of KRS 61.846(1) by explaining the application of the statutes supporting its denial of relief. Accordingly, we do not find a violation of the Act. 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.
Footnotes
Footnotes
1 The Courier-Journal's argument that provisions of KRS Chapter 133 require physical inspections to be conducted in public is extraneous to our jurisdiction under KRS 61.846(2).