Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Meetings Decision
Lawrence Trageser initiated this appeal per KRS 61.846(2) by letter dated January 15, 2016, challenging the failure of the Spencer County Ethics Commission ("Ethics Commission") to comply with KRS 61.823(1)-(4), the notice requirements for special meetings, on several different occasions. 1 In his January 7, 2016, complaint, 2 Mr. Trageser alleged that the Ethics Commission engaged "in no less than three documented 'SPECIAL' meetings to consider three ethics complaints filed by [Mr. Trageser] on the following dates, January 8, 2015, September 27, 2015 and October 29, 2015." Mr. Trageser advised that "he was not notified" of those "secret meetings" nor was the public. To remedy the alleged violations, Mr. Trageser proposed that the Ethics Commission "cease and desist engaging in illegal meetings, obtain a copy of the Kentucky Open Records and Open Meetings procedures and rules, implement those procedures and rules and provide a written and public apology to the taxpayers and Spencer County Fiscal Court" for said illegal conduct.
In support of his position that the Ethics Commission violated KRS 61.823, Mr. Trageser provided this office with a copy of his December 28, 2015, request for "any and all documents reflecting the 'SPECIAL' meeting notices and advertisements, 'SPECIAL meeting agendas and the 'SPECIAL' meeting minutes for the" specified meetings and the Ethics Commission's December 29, 2015, response advising that no such "notices, advertisements, agendas, or minutes of meetings regarding complaints on those three dates" exist. (Original emphasis.) Mr. Trageser also included a copy of each of the letters from the former chairman of the Ethics Commission, Hoyt Higgins, provided in response to his three separate ethics complaints. According to Mr. Trageser, if Mr. Higgins "created a document rendering an official determination or conclusion in response to a verified complaint concerning ethical violations, and he specifically states that the Ethics Committee, Board or Commission has performed or taken action, [then] it is reasonable to conclude that a meeting of more than one person has taken place." Mr. Trageser noted that sections 17 and 18 of the Spencer County Ethics Code "require, if not demand that the Ethics Committee meet to conduct action on a complaint, to include the three involved" here.
In response to Mr. Trageser's appeal, Spencer County Attorney Kenneth S. Jones responded on behalf of the Ethics Commission. Mr. Jones advised that "Mr. Higgins completed the initial inquiry, as defined in the ethics ordinance, by himself. He never convened a meeting of all members of the ethics commission to conduct an initial inquiry. He investigated, determined that no violation had occurred and reported such." The document reporting this final action was "then filed with the Spencer County Clerk's Office pursuant to the ethics ordinance. " Mr. Jones maintained that none of the foregoing violated the provisions of KRS 61.823.
This office has long recognized that its authority under KRS 61.846(2) is narrowly defined to include only "review[ing] the complaint and denial and issu[ing] within ten (10) [business] days, . . . a written decision stating whether the agency violated the provisions of [the Open Meetings Act] ." In other words, the Attorney General is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4; 10-OMD-120 (Attorney General lacked authority to order a city to enforce Code Enforcement Board orders); 15-OMD-142. Accordingly, this office declines to make any finding relative to compliance with Sections 17 and 18 of the Spencer County Ethics Code or lack thereof by the Ethics Commission.
"In the absence of any evidence that a quorum of the members of the [Ethic Commission] was present at a single meeting from which the public was excluded, or that the members engaged in a series of less than quorum meetings for the purpose of avoiding the requirements of the Act, this office has no basis upon which to conclude that the [Ethics Commission] violated the Open Meetings Act. " 13-OMD-142, p. 4. Consistent with KRS 61.810(1), application of the requirements of the Act "is conditioned upon proof that a meeting occurred, that the meeting was attended by a quorum of the members of the public agency, and that public business was discussed or action was taken." 00-OMD-200, p. 6 (emphasis added). Mr. Trageser's complaint made per KRS 61.846(2) alleging violations of KRS 61.823 was premised on the apparently mistaken belief that a meeting or meetings of the Ethics Commission were held for the purpose of discussing ethics complaints that he filed on three separate occasions. That belief was reasonably based on language contained in letters that he received from the former chairman advising that the "committee" was "terminating further action and dismissing the complaint" or the "Commission of the Ethics Board is immediately terminating the inquiry and issuing this written opinion. . . ."
However, KRS 61.810(1) expressly provides that "[a]ll 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 [certain exceptions codified at (1)(a)-(m)]." Violation of the Act, "insofar as it relates to 'secret meetings,' is therefore predicated on two kinds of prohibited conduct: (1) a private meeting of a quorum of the members of an agency at which public business is discussed or action is taken; and (2) a series of less than quorum meetings attended by members of the agency collectively constituting a quorum which are held for the purpose of circumventing the requirements of the Act." See KRS 61.810(1) and (2); 13-OMD-142, p. 6. On appeal the Ethics Commission advised that Mr. Higgins conducted the inquiry himself on each occasion rather than convening a meeting of the Ethics Commission. Regardless of whether this course of action complied with its "ordinance" or Ethics Code, a question which is beyond our purview, the record on appeal does not contain any objective proof to refute this assertion. See 13-OMD-142 (unsubstantiated claim that a series of less than quorum meetings occurred "simply does not constitute proof that a violation occurred, particularly in light of the [agency's] differing recollection). Because a quorum of the Ethics Commission did not gather to discuss or take action regarding Mr. Trageser's ethics complaints, the requirements of the Open Meetings Act were not implicated. KRS 61.810(1). "Because there was no quorum, there was no meeting." 94-OMD-63, p. 3; 13-OMD-166. Given this determination, "we need not decide whether the [Ethics Commission] complied with the notice provisions for special meetings[.]" 13-OMD-166, p. 3.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes
1 KRS 61.823(5), also cited, governs emergency meetings and has no application here.
2 The record is unclear as to whether Mr. Trageser properly directed his complaint to the presiding officer of the Ethics Commission per KRS 61.846(1) or the "Official Custodian of Records." Inasmuch as the Ethics Commission did not raise this argument on appeal, this office must assume that Mr. Trageser submitted his complaint to the presiding officer notwithstanding his reference to the "Official Custodian of Records" on the complaint. See 13-OMD-049.