Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Magoffin County Board of Education violated provisions of the Open Meetings Act in connection with a special meeting on August 29, 2013. For the reasons that follow, we find that the Board did not substantively violate the Act, but procedurally violated KRS 61.846(1) by failing to make a written response to an open meetings complaint.
In a complaint made September 19, 2013, addressed to Board Chair Caroline Isaac, Adam Marshall stated as follows:
Because you are the chairperson for the Magoffin County Board of [E]ducation, I am submitting a complaint to you, concerning the action taken August 29, 2013. You acted to raise property taxes 5.9 cents per 100 dollars. This vote and action was taken improperly, due to the following reasons.
(A) The notice of public meeting was advertised as being conducted at the Central Office Board Room, while actually being held at the old high school cafeteria.
(B) Superintendent Holbrook wrote an open letter published in the Salyersville Independent August 22, 2013 that a nickel tax levy was being proposed. He used the example that an appraised property value of $ 50, 000 would cost the taxpayer an additional $ 25.00, when in reality the proposed levy was 5.9 cents and that same taxpayer would have to pay an additional $ 29.50.
(C) The Board of Education advertised that they (plural) would hear public comments concerning the tax levy. Mrs. Isaac, you were the only Board member present at that public meeting. There was no time available and it was impossible for you to convey any of the public's concerns to the other board members before the vote was taken to raise these taxes.
(D) This public meeting was held on the same afternoon in direct conflict with the largest and most patronized annual event in Magoffin County, Founders Day. This meeting was held during the competition for Miss Teen Magoffin County.
"The courts have stated that the open meetings Act is designed to prevent governmental bodies from conducting business at such inconvenient times or locations as to effectively render public knowledge or participation impossible."
Considering all these facts it is obviously evident that the Public was not provided sufficient information, notice, or opportunity to voice their concerns on this matter, as provided by KY law.
I am requesting that the Board rule the aforementioned action null and void and schedule a new and lawful public meeting so that Magoffin County Citizens can be heard.
(Quotation marks in original.) Having received no response, Mr. Marshall appealed to the Attorney General. This office received the appeal on October 1, 2013.
On October 3, 2013, attorney Donald McFarland responded to this appeal on behalf of the Board, admitting that no action was taken on Mr. Marshall's complaint because the Board "did not immediately recognize or understand it to be a violation or complaint of the Open Meetings Act. " In response to complaint (A), he attached a copy of a notice, which ran in the local newspaper and indicated that "[t]he Magoffin County Board of Education will hold a public hearing at the Magoffin County Support Program Complex, 169 Gardner Tr., Salyersville, Kentucky," which is where the public hearing was in fact held. Mr. McFarland noted that "the address of the Magoffin County Board of Education is 109 Gardner Trail," which could have been the source of Mr. Marshall's confusion. In response to complaints (B) and (D), Mr. McFarland explained that the superintendent was merely explaining in general terms what a nickel tax meant, and that "[t]he public meeting was conducted from 6:00 pm to 7:00 pm while the Miss Teen Pageant occurred at 8:00 pm ? less than 1/2 mile from the public meeting site."
In response to complaint (C), Mr. McFarland indicated that two of the five members of the Board of Education, "[t]he School Board Chairman, Caroline Isaac, and Vice Chairman Carl Howard," were present at the public hearing, along with the superintendent, attorney, and a "Tax Expert." Thus, the parties agree that at most two board members were present on August 29, 2013.
We are unaware of any rule, statute, or ordinance under which two out of five board members could constitute a quorum. Since only "meetings of a quorum of the members" (or a series of meetings encompassing a quorum) can violate KRS 61.810, no violation occurred if only two members were present. "Because there was no quorum, there was no meeting." 94-OMD-63. Therefore, since no meeting was held as defined by the Open Meetings Act, we need not decide whether the Board of Education complied with the notice provisions for special meetings or held the hearing at a convenient time or place. 09-OMD-210.
Furthermore, this was evidently a public hearing on a tax proposal, governed by the notice provisions of KRS 424.130. "The Attorney General is not charged with the duty to interpret and enforce the requirements for legal notices codified in KRS Chapter 424, and in particular KRS 424.130, in an open meetings appeal." 00-OMD-65. Accordingly, since the provisions of the Open Meetings Act do not apply to a meeting of less than a quorum, we have no jurisdiction over the substance of the complaint.
KRS 61.846(1), however, requires a public agency to issue a written response to an open meetings complaint within three business days. Since Mr. Marshall did explicitly mention the Open Meetings Act in his complaint, we find a procedural violation of KRS 61.846(1) in that the Board made no written response.
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:
Mr. Adam MarshallStanley Holbrook, Superintendent Judy C. Isaac, ChairDonald W. McFarland, Esq.