Request By:
Mr. Hugh M. Wittich
Chairman
Ashland Public Library
1740 Central Avenue
Ashland, Kentucky 41101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion concerning the establishing of a library district pursuant to KRS 173.720 [petition method].
Question No. 1:
"Once a person has signed the petition, can he have his name removed, and, if so, what procedure must he use in order to do so? Can his name be removed from the petition by any other method prior to the time the petition is delivered to the fiscal court clerk? "
Once the petition is properly filed with the clerk of the fiscal court, it becomes a public record. Prior to such filing, we do not believe that the signing of the petition is an irrevocable act. The petition is not a contract. It is a recognized legal substitute for voting to create a library district. Boggs v. Reep, Ky., 404 S.W.2d 24 (1966) 26. Thus a person who has signed the petition, and before it is properly filed with the clerk, may revoke or obliterate his own signature by marking lines through the signature, stating that it is withdrawn, and initialing the expungement. In this manner the fiscal court has a documented basis for determining any such pre-filing withdrawals. A proper filing means that the petition must be filed with fiscal court in the county of the proposed district not later than ninety (90) days after the date of the first signature on the petition. KRS 173.720.
The petition cannot be changed in any way after its filing except by court order. See Rodley's Adm'r v. Morris, 6 Ky. Opin. 151 (1872), holding that a public record shall not be altered or its veracity questioned unless the power as well as the right to alter or amend is clearly shown. Also see 76 C.J.S., Records, § 25, p. 127.
Question No. 2:
"While the petitions are being verified by the clerk or his deputies, can the opponents of the petition request the clerk or his deputies to make copies of the petitions during the time they are verifying the petitions or must the opponents make their own copies after the petitions are verified; i.e., is the process of verification more important than providing information to those who oppose the petition?"
Once a petition is filed, the fiscal court is responsible for determining whether or not the petition is valid and properly filed on its face. This may include the checking of the names (if they are questioned) on the petition against the voters' registration data in the county clerk's office, by way of the clerk determining that petitioners are qualified voters of the district.
Since the filed petition requires fiscal court to check its validity on its face as we said, it is our opinion that it does not become a full blown public record, for purposes of the open records law, until after fiscal court has determined its validity. In addition, while the petition record is needed by the clerk and his staff to check the validity of the signatures, etc., for fiscal court, the custodian may reasonably delay inspection of the record and the making of copies until after the verification process has been concluded. In this manner an essential function of the clerk would not be disrupted. See KRS 61.872 and 61.874.
Question No. 3:
"Must the signatures on the petition be verified by the clerk within 90 days from the date of the first signature on the petition? If not, by what date must they be verified? "
KRS 173.720(1) requires that the petition be filed with the fiscal court in the county of the proposed district not later than ninety (90) days after the date of the first signature on the petition. But the 90 days period applies only to the filing deadline. No express period is given for the verification process. In such absence, the courts would probably hold that fiscal court has a reasonable time within which to verify the petition, the period of reasonable time having to be defined by the courts. It is true that KRS 173.720(1) provides in part that upon the filing of the petition, etc., the fiscal court shall adopt a resolution ordering the levy of the library district tax. But a reasonable time for checking the petition by fiscal court is an obvious necessity, as we said. The court has said that the act of fiscal court in approving a petition of this kind is administrative or ministerial, and that body has authority to determine the sufficiency of the facts upon which its administrative or ministerial action is based. Meredith v. Sears, Ky., 427 S.W.2d 813 (1968) 815.