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 Lyon County Fiscal Court violated the Open Meetings Act by taking final action during a closed session at its meeting held on April 13, 2017, to authorize the filing of a civil action against Wesley Herran and Cumberland Valley Realty, Inc. A complaint letter dated February 12, 2018, submitted by Mr. Herran to the Lyon County Judge/Executive, resulted in a response from the Lyon County Attorney on February 16, 2018, denying any violation of the Act. Mr. Herran's attorney, Thomas Springer, then initiated this appeal, which was dated February 23, 2018, and received in this office on February 27, 2018.
On February 12, 2018, the same date as Mr. Herran's initial open meetings complaint, Mr. Springer filed a motion for summary judgment in Lyon Circuit Court Civil Action No. 17-CI-00047, styled Commonwealth of Kentucky, County of Lyon v. Cumberland Valley Realty, Inc., and Wesley F. Herran . In his motion, Mr. Springer asserted the same Open Meetings Act violation alleged here, and requested dismissal of the action on that basis.
Because Mr. Springer has raised the same issue here and in Lyon Circuit Court, it would "be improper for this office to substantively determine [the] open [meetings] question." OAG 88-78; accord , 93-OMD-81; 07-ORD-194; 07-ORD-221; 07-ORD-248; 07-ORD-259; 08-ORD-038; 08-ORD-248; 11-ORD-192; 17-ORD-096. Accordingly, this office respectfully declines jurisdiction.
Our conclusion is consistent with a line of decisions dating back to 1988. In OAG 88-78, the Attorney General recognized:
It is clear from KRS 61.882 that the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions. Under such statutory circumstances, it would be improper for this office to attempt to substantively determine an open records question when the same question is before a circuit court.
The following excerpt from 07-ORD-194 makes clear that this principle applies in the context of both open records and open meetings appeals:
In OAG 88-78, the Lexington Herald-Leader appealed to the Attorney General the University of Kentucky's denial of its request for records related to the NCAA's inquiry into the University's athletics program. Shortly thereafter, the Courier-Journal filed a joint petition for declaration of rights in the Fayette Circuit Court the "specific focus" of which was the issue of whether records relating to the NCAA inquiry must be made available for inspection under the Open Records Act. Similarly, in 93-OMD-81 the complainant simultaneously initiated an open meetings appeal to the Attorney General and an action in circuit court, alleging the same violation of the Open Meetings Act, and requesting the same relief in each forum. In both cases, the Attorney General declined jurisdiction, reasoning that "a person cannot seek relief from [the Attorney General] under [KRS 61.880/61.846] . . . when the same questions . . . are currently pending before a circuit court under [KRS 61.882/61.848]." 93-OMD-81, p. 2; see also, 03-ORD-238. Thus, "where the issue before the circuit court is whether disputed records must be made available for inspection under the Open Records Act, the Court's authority 'to substantively determine [the] open records question' clearly supersedes that of the Attorney General." 97-ORD-73, p. 3.
As in 93-OMD-81, the open meetings issue presented in the appeal now before us is clearly identical with an issue presented in the parallel litigation. This office therefore "defer[s] to the [Lyon] Circuit Court to substantively determine the open [meetings] question now before it and presented" in the instant appeal. 07-ORD-194.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.