Request By:
Jim Evans
Barty Bullock
Dan Thompson
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Pulaski County Fiscal Court violated KRS 61.846(1) in failing to respond to Jim Evans' June 16, 2008, complaint in which he alleged that "[d]uring the first reading of the county's '08-'09 budget, members of the Fiscal Court engaged in discussions which were inaudible to members of the public who attended the meeting." 08-OMD-042, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. Because the record on appeal contains conflicting factual narratives, this office cannot conclusively determine that the fiscal court violated KRS 61.810(1) and KRS 61.840 by engaging in whispered discussion of the public's business, namely, the proposed county '08-'09 budget, at its June 10, 2008, meeting. We continue to adhere to the view expressed in 01-OMD-110:
It is not the number of [public officials] participating in those discussions, or the duration of the discussions that is determinative, but the content of the discussions and the open forum in which they were conducted. [When] a quorum of the members [are] present, and public business [is] being discussed, the meeting [is] required to be "open to the public at all times . . .," and not interrupted by whispered discussions to which the public [is] effectively denied access.
01-OMD-110, p. 7. We vigorously disagree with the fiscal court's assertion that the Open Meetings Act does not require public officials "to speak in a loud enough [voice] to be heard by everyone in the room." Nevertheless, the record on appeal contains insufficient proof to support either the claimed violation or the asserted defense.
Because our role in adjudicating an open meetings appeal is limited to issuing a decision "stat[ing] whether the agency violated the provisions of KRS 61.805 to 61.850," we are foreclosed from commenting on the remedies that Mr. Evans proposed or that the fiscal court implemented. We note, however, that Mr. Evans may obtain a copy of any audio or videotape of the meeting, upon submission of an open records request for same, as long as the tape of the meeting was created at the fiscal court's direction using county equipment. See OAG 92-111 (enclosed).
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.