13-OMD-209
December 16, 2013
In re: Lawrence Trageser/Spencer County Fiscal Court
Summary: Attorney General declines jurisdiction based on complainant’s failure to propose a remedy for an alleged violation of the Open Meetings Act in his original complaint.
Open Meetings Decision
The question presented in this appeal is whether the Spencer County Fiscal Court violated the Open Meetings Act by repeatedly calling special meetings on consecutive days. Because the KRS 61.846(1) complaint out of which this appeal arises failed to “state what the public agency should do to remedy the alleged violation,” that complaint was deficient and the issue presented on appeal is not ripe for review.
On November 17, 2013, Lawrence Trageser submitted a written complaint to Spencer County Judge/Executive Bill Karrer. The complete text of the complaint was as follows:
Comes the Petitioner with just cause and complaint against Spencer County Judge Executive Bill Karrer for violations of the Open Meeting [sic] Act. Spencer County Judge Executive Bill Karrer has violated the Open Meetings Act, on no less than six consecutive days by intentionally calling repetitive SPECIAL MEETINGS on the
Dates of Friday, September 6th, 2013, Monday, September 9th, 2013, Tuesday, September 10, 2013, Wednesday, September 11th, 2013, Thursday, September 12th, 2013, and Friday, September 13th, 2013 for the purpose of conducting normal business operations, under the deceptive tactic of calling them SPECIAL MEETINGS. Karrer was circumventing the Open Meetings Act by attempting to obstruct the people of Spencer County attending meetings by calling numerous and repetitive SPECIAL MEETINGS every day, confusing people of Spencer County as to the specific business being discussed, so concluded by 13-OMD-173, by calling numerous and repetitive SPECIAL MEETINGS, and by NOT following KRS. [sic] 61.820, in having a schedule of regular meetings for conducting business of Spencer County, specifically, NOT adhering to that schedule.
(Emphasis in original.)
KRS 61.846(1), which sets out the requirements for a valid administrative complaint under the Open Meetings Act, states, in pertinent part:
If a person enforces KRS 61.805 to 61.850 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. The public agency shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. … An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply. The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.
(Emphasis added.) Mr. Trageser’s complaint fails to conform to these requirements, in that it contains nothing that can be construed as a statement of “what the public agency should do to remedy the alleged violation.”
Pursuant to 40 KAR 1:030, Section 1, “[t]he Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency’s written response.” Since Mr. Trageser did not submit a written complaint fulfilling the requirements of KRS 61.846(1), we cannot assume jurisdiction over this appeal. 00-OMD-156 (copy attached).
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.
Jack Conway
Attorney General
James M. Herrick
Assistant Attorney General
#454
Distributed to:
Mr. Lawrence Trageser
Hon. Bill Karrer
Ruth A. Hollan, Esq.