Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
This matter having been presented to the Office of the Attorney General in an open meetings appeal, and the Attorney General being sufficiently advised, we find that the Butler County Fiscal Court did not violate the Open Meetings Act by conducting twelve special meetings between January 1, 2013, and September 7, 2013. In one instance, however, the fiscal court violated the act by failing to post notice as required by KRS 61.823(4)(c).
In a written complaint submitted to Butler County Judge/Executive David Fields on September 24, 2013, Robert Cron alleged that the fiscal court failed to post a written notice in the Reedyville Rural Development Club building before a special meeting of the fiscal court was held there in August 2013. He also alleged that the fiscal court had held special meetings "with more frequency than is acceptable to me" during 2013. As a remedy, he proposed that the fiscal court admit its violation of the notice requirement at Reedyville and either hold fewer special meetings or hold more regular meetings.
Responding to Mr. Cron on September 27, 2013, Butler County Attorney Richard J. Deye admitted that the fiscal court had not posted a notice as required in the Reedyville building where the special meeting was to take place. 1 KRS 61.823(4)(c) provides:
As soon as possible, written notice shall ? be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be calculated so that it shall be posted at least twenty-four (24) hours before the special meeting.
(Emphasis added.) Since the fiscal court admittedly did not fully comply with this subsection, we find that a violation of the Open Meetings Act occurred. 2
As to Mr. Cron's allegation that special meetings have occurred with excessive frequency, Mr. Deye responded:
As of the writing of this response, there have been 12 special called meetings of the Butler County Fiscal Court in calendar year 2013. Two of these meetings were meetings at the Reedyville Rural Development Club and the Provo Rural Development Club. One of the meetings was a work session to discuss provisions of the personnel policy. No action or votes were taken other than adjourning the meeting. Another one of the special called meetings was a work session to discuss a nuisance ordinance. One of the special called meetings was a committee meeting for the viewing of a public road. Several of the other meetings involved budgetary issues or establishing the tax rates. While the point i[s] arguable, with the exception of the meetings held out in the county, the special called meetings involved circumstances that are time sensitive and cannot be postponed to a regular meeting. There are time constraints involved in setting the tax rates. The Fiscal Court cannot adopt the tax rates until the various taxing authorities provide them to the Fiscal Court. [A]t times special meetings are necessary. The Fiscal Court would deny any implication that the Fiscal Court schedules special called meetings to handle matters that could just as easily be handled at a regular meeting.
Mr. Cron initiated this appeal to the Attorney General on November 18, 2013.
On November 26, 2013, along with a written response to the appeal, Mr. Deye provided copies of the agendas for all regular and special meetings of the fiscal court during 2013. He acknowledges "that the special called meetings held at Provo on May 23, 2013, and Reedyville on September 9, 2013 took the place of regular meetings, and that the special called meeting held on November 14, 2013 was a rescheduling of the November regular meeting, " but maintains that on the whole "the agendas would reflect that special called meetings involve the consideration of only limited issues."
In 11-OMD-129, we addressed a similar argument from Mr. Cron that the number of special meetings held was excessive; in that case, twelve special meetings of the fiscal court had allegedly been held between January 1, 2011, and July 25, 2011. We found that this fact alone was not sufficient to establish a violation of the Open Meetings Act, but stated that if there were "proof ? that the fiscal court intentionally conducted the majority of its business at special meetings to avoid public scrutiny, this office would find a violation of KRS 61.820, requiring public agencies to hold their meetings 'at specified times and places convenient to the public' and 'provide for a schedule of regular meetings.'" Such proof is not present here. We do not discern a pattern, either in the agendas submitted by Mr. Deye or from anything else in the record, that would indicate an intent on the part of the fiscal court to use special meetings to conduct the majority of its regular business as a means of circumventing the Open Meetings Act.
We attach a copy of 11-OMD-129 and adopt it as the basis for our decision in this appeal. Accordingly, we find that the Butler County Fiscal Court partially violated the notice provision in KRS 61.823(4)(c) in connection with the Reedyville meeting, but did not otherwise violate the Open Meetings Act.
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. Robert D. CronHon. David FieldsRichard J. Deye, Esq.
Footnotes
Footnotes