Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The Attorney General having received an appeal from Judy Ponder under the Open Meetings Act, and it appearing that the appeal is untimely brought under KRS 61.846(2), this office must decline to render a decision. Ms. Ponder alleges that at some point during October 2012, the Oldham County Board of Adjustments and Appeals conducted an improper vote in closed session regarding whether to appeal a prior Open Meetings decision of this office to the Oldham Circuit Court, and that the Board failed to record its action in the minutes. She made a written complaint to this effect to Board Chairman Larry Otterback on April 4, 2013, and received the Board's reply on April 6, 2013. Her appeal to the Attorney General is dated June 24, 2013, and was received by this office on June 26, 2013.
This office is precluded from rendering a decision under the Open Meetings Act where the appeal has not been brought within the statutory time period provided in KRS 61.846(2). In relevant part, KRS 61.846(2) provides:
If a complaining party wishes the Attorney General to review a public agency's denial, the complaining party shall forward to the Attorney General a copy of the written complaint and a copy of the written denial within sixty (60) days from receipt by that party of the written denial. If the public agency refuses to provide a written denial, a complaining party shall provide a copy of the written complaint within sixty (60) days from the date the written complaint was submitted to the presiding officer of the public agency. The Attorney General shall review the complaint and denial and issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.
Although Ms. Ponder has provided the required documentation for this appeal, she has not done so within the time period provided by statute. "Executive Branch agencies or administrative agencies have no inherent authority and may exercise only such authority as may be legislatively conferred." Herndon v. Herndon, 139 S.W.3d 822, 829 (Ky. 2004). Accordingly, this office lacks jurisdiction to render a decision in this matter.
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.
Distributed to:
Ms. Judy PonderMr. Larry E. Otterback IIJohn K. Carter, Esq.