Request By:
Mr. Paul Heck
Member, Board of Trustees
Newport Policemen's and Fire Fighter's
Retirement Fund
435 Lafayette Street
Bellevue, Kentucky 41073
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the Policemen's and Fire Fighters' Retirement Fund of the City of Newport (KRS 95.851 to 95.885 and 95.991). Prior to the beginning of a recent meeting, an active member of the Newport Fire Department requested permission to attend the meeting of the Board of Trustees of the Retirement Fund. A majority of the board members refused the request and said that their meetings were closed to everyone except board members and their invited guests. They maintained that their meetings were not subject to the provisions of "Open Meetings" Law.
At the meeting in question the board members voted on a particular matter. Present at the meeting were the mayor, the city treasurer, the police chief, the fire chief and the elected police and fire fighter representatives. The mayor abstained when the vote was taken and the city treasurer voted along with the other four members in attendance.
Your questions to this office are whether the Board of Trustees may exclude from their meetings active members of the police and fire departments and whether the city treasurer may vote even though he is also the secretary to the Board of Trustees.
The provisions of the "Open Meeting" Law are set forth in KRS 61.805 to 61.850 and we direct your attention to the definition of "public agency" set forth in KRS 61.805(2):
"'Public agency' means any state legislative, executive, administrative or advisory board, commission, committee, policy making board of an institution of education or other state agency which is created by or pursuant to statute or executive order (other than judicial or quasi-judicial bodies); any county, city, school district, special purpose district boards, public commissions, councils, offices or other municipal corporation or political subdivision of the state; any committee, ad hoc committee, subcommittee, subagency or advisory body of a public agency which is created by or pursuant to statute, executive order, local ordinance or resolution or other legislative act, including but not limited to planning commissions, library or park boards and other boards, commissions and agencies."
KRS 95.852 provides in part that there is hereby established in cities of the second class a retirement and benefit fund for members of the police and fire departments, their dependents and beneficiaries. The purpose of the fund is to provide retirement annuities and disability benefits for the members of the police and fire departments who become aged or otherwise incapacitated, and widows' annuities and other benefits to the dependents of such members (KRS 95.853). All full-time members of the police and fire departments are members of the fund (KRS 95.854). The responsibility for operating the fund is vested in a board of trustees of six members consisting of the mayor ex officio, the city treasurer ex officio, the chiefs of the police and fire departments ex officio and one active member of each department who shall be elected by the members of that department (KRS 95.869). The duties of the board are set forth in KRS 95.871 and included therein is the duty to keep a full record of all proceedings, which shall be open to inspection by the public.
In our opinion the board of trustees of the Policemen's and Fire Fighters' Pension Fund in a city of the second class, created and existing pursuant to KRS 95.851 to 95.885, constitutes a "public agency" within the meaning of KRS 61.805(2). The meetings of such a "public agency" are open to the public at all times unless the particular meeting in question comes within the exceptions to the "Open Meetings" Law as set forth in KRS 61.810. Therefore, unless the board of trustees can demonstrate that a particular meeting is within the exceptions to the "Open Meetings" Law, the board cannot exclude from that meeting members of the public which, of course, would include members of the retirement fund.
As previously mentioned, KRS 95.869 provides in part that the city treasurer ex officio is one of the six members of the board of trustees of the retirement fund. He, like all other members of the board of trustees, is entitled to vote on matters properly before the board and is required to follow the provisions of KRS 95.871 relative to the board's duties.
KRS 95.872(2) provides in part that the board of trustees shall designate a secretary who may be a member of the board. Since the statute specifically provides that a board member may be the secretary to the board, it is our opinion that if a board member is designated as the board's secretary, he does not forfeit his right to vote as a member of the board. When, in such a situation, the board's secretary votes, he votes in his capacity as a statutory member of the board and not as the board's secretary.