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 Oldham County Board of Adjustments and Appeals violated the Open Meetings Act at a public hearing held on December 19, 2013. For the reasons that follow, we find that the Board improperly relied on KRS 61.810(1)(j) as authority for conducting a closed session.
By letter dated March 3, 2014, Judy Ponder submitted a written complaint to Board of Adjustments and Appeals Chairman Larry E. Otterback II, in which she alleged that at a December 19, 2013, public hearing on a variance application the Board went into a closed session to conduct deliberations, purportedly on the basis of KRS 61.810(1)(j). She pointed out that KRS 61.810(1)(j) , by its own terms, does not apply to boards of adjustment. Ms. Ponder included a lengthy list of proposed remedial measures.
Oldham County Attorney John K. Carter replied on March 5, 2014, with a letter stating:
[The Board] did not violate the Open Meetings Act by deliberating its decision in closed session ? [The Board] received testimony under oath concerning the application at the conclusion of which [the Board] noticed with specific reference to the exclusionary provision of KRS 61.810(1)(f) 1 [ sic ] its intent to deliberate on the application in closed session after which [it] reconvened in open session to vote and announce its decision on the application.
[The Board] is required to hold a public hearing, after notice, on applications for permitted land use variances as authorized by KRS 100.241. [The Board] acts as a quasi-judicial body on all appropriately filed and noticed variance application exercising its quasi-judicial discretion in determining whether to grant the application. In the exercise of this discretion [the Board] is not subject to the [Open Meetings Act] by deliberating in closed session its decision which was subsequently voted on and announced in public session. Acting as a quasi-judicial body in this instance, [the Board] did not violate the Open Meetings Act. See KRS 61.810(1)(j); OAG 84-162; OAG 83-446.
(Emphasis omitted.) Ms. Ponder initiated this appeal with a letter dated March 10, 2014.
The County Attorney responded to the appeal on March 17, 2014, reiterating the Board's reliance on KRS 61.810(1)(j) and the two Attorney General's opinions cited earlier. He also argues that the Board did not take "official action" in closed session.
KRS 61.810(1) provides in pertinent part: "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following":
(j) Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointments, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment [.]
(Emphasis added.) Thus, the exception cited by the Board to authorize a closed session expressly excludes its own application to "meetings of ? boards of adjustment." KRS 61.810(1)(j) is thus unavailable to the Oldham County Board of Adjustments and Appeals. The two opinions cited by the Board, OAG 84-162 and OAG 83-446, predate the enactment of KRS 61.810(1)(j) in 1992, and as such do not speak to the current law.
The same statute, KRS 61.810(1), provides that the requirement for meetings to be open to the public is not limited to "action" taken by the public agency, but also applies to any discussion of "public business. " "The language of KRS 61.810(1) makes this abundantly clear through the use of the disjunctive particle 'or' rather than the conjunction 'and.'" 10-OMD-169. Therefore, it is not dispositive whether the Board took formal action during the closed session. Since public business was discussed, we find that the closed session on December 19, 2013, violated 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:
Ms. Judy PonderLarry E. Otterback II, ChairJohn K. Carter, Esq.
Footnotes
Footnotes
1 This is evidently a typographical error for KRS 61.810(1)(j), since subsection (1)(f) applies only to "[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student."