Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by David W. Barhorst in connection with his complaint against the Medical Center Commission of Jefferson County.
In a letter to Ed Dusch, Chief Executive Officer of the Medical Center Commission of Jefferson County, dated January 11, 1995 (presumably 1996 was intended), Mr. Barhorst requested "enforcement of the statute as it pertains to the Medical Center Commission of Jefferson County's meeting on September 27, 1995." Mr. Barhorst said in part that the meeting violated the Open Meetings Law because of the failure to give proper notice and for conducting the meeting in a secretive manner.
Mr. Barhorst's letter of appeal was received by this office on January 22, 1996. He requested that this office "investigate" allegations of Open Meetings Law violations relative to the Medical Center Commission of Jefferson County. He maintained that the agency failed to follow the requirements of the Open Meetings Act concerning special meetings, that he has been locked out of meetings, and that meetings are conducted in "a secretive fashion."
Included with Mr. Barhorst's letter of appeal was a copy of his letter to the members of the Jefferson County Ethics Commission which is not pertinent as far as his appeal under the Open Meetings Act is concerned.
In a letter, dated January 30, 1996, and addressed to David Barhorst and Ed Dusch, this office invoked the provisions of KRS 61.846(2) and requested additional information from the parties including a copy of the public agency's response to Mr. Barhorst's letter of January 11, 1996.
Although KRS 61.846(2) requires the appealing party to include in part with his appeal a copy of the letter of denial from the public agency, Mr. Barhorst's appeal did not include such a document. As of February 5, 1996, this office has not received a response from Mr. Barhorst to its letter of January 30, 1996.
On January 30, 1996, this office received a letter from James N. Williams, Esq., legal counsel for the Medical Center Commission of Jefferson County, contending in part that the appeal did not comply with the statutory requirements pertaining to an appeal under the Open Meetings Act. Included with that letter was a copy of a letter, dated January 12, 1996, from Edward A. Dusch to David Barshorst stating in part as follows:
I have your letter of January 11, 1996, in which you complain of an open meeting violation in connection with an alleged meeting of the Medical Center Commission held on September 27, 1995. Our response is as follows:
The Medical Center Commission did not have a meeting on September 27, 1996 [1995].
A copy of a receipt for certified mail was furnished which indicated that the letter was sent to Mr. Barhorst.
The limited function of the Attorney General in regard to the handling of complaints received under the Open Meetings Act is set forth in KRS 61.846(2). There is a provision in that section which requires the Attorney General to review the complaint and denial and issue a written decision which states whether the public agency violated the Open Meetings Act.
The complaint submitted to the public agency requested enforcement of the Open Meetings Act relative to the agency's meeting of September 27, 1995. The specific violations alleged were failure to give proper notice and conducting the meeting in a secretive manner. The public agency's response to the complaint was that it did not have a meeting on September 27, 1995. Counsel for the public agency has stated that Mr. Barhorst has never been excluded from a meeting when he appeared at the door of the building.
Thus, on the basis of the evidence presented and limiting our analysis and examination to the narrow function which has been statutorily imposed upon this office, it is our decision that the public agency did not violate the Open Meetings Act on the day in question as no meeting was held on that date.
A party aggrieved by this decision may challenge it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.