16-OMD-214
October 4, 2016
In re: Ray Gough/Calloway County Board of Assessment Appeals
Summary: Calloway County Board of Assessment Appeals violated KRS 61.810(1) by excluding members of the public from its hearings and preliminary proceedings.
Open Meetings Decision
The question presented in this appeal is whether the Calloway County Board of Assessment Appeals violated the Open Meetings Act by excluding the public from proceedings at its meeting on June 17, 2016. For the reasons that follow, we find that the Board violated the Act by failing to respond to a complaint and by improperly closing its meeting to the public.
By letter delivered August 26, 2016, Ray Gough submitted to Board Chairman Ryan Stanger a written complaint under the Open Meetings Act, in which he alleged that he arrived for the June 17 meeting prior to Mr. Stanger and sat in the meeting room:
Once you arrived, my son, my friend, and myself were ordered from the meeting room by PVA Nikki McMillen-Crouch and told to stand in the hall until called. I objected to this and asserted that I felt we had a right to attend the public meeting and view the work of our government. Regardless, we were not allowed to attend that portion of the meeting, which I assume included the taking of oath required by KRS 133.020(4), as well as the appointment of a chairperson which is required by KRS 133.020(1)(e)(4) to be done by the county Judge Executive, although it shall be noted that the whole time we stood in the hall the Judge Executive never entered the board room.
We were also not allowed to attend the portion of the meeting for discussion and decision making of the Board on the appeals as well as the portion of the meeting held last, which was the Board reviewing the PVA employee’s assessments, including the assessment of the property owned by the PVA Nikki McMillen-Crouch.
Mr. Gough included a list of proposed remedial measures for the alleged violations. After receiving no response to his complaint, he initiated an appeal to this office, which was received September 20, 2016.
On September 22, 2016, Calloway County Attorney K. Bryan Ernstberger responded to the appeal, stating in part as follows:
To begin, it is my understanding from discussions with PVA Crouch and my reading of the minutes of the meeting in question that the only portion of the meeting of June 17, 2016 that Mr. Gough was asked to leave and excluded from was the portion that covered the training and orientation of board members. In excluding Mr. Gough from the orientation session, PVA Crouch and the board acted at the direction of a representative of the Kentucky Department of Revenue. It is my understanding that no business was discussed and no action was taken by the board during this portion of the meeting, thus, PVA Crouch and I believe that this portion of the meeting was not subject to the provisions of the Open Meetings Act.
Mr. Ernstberger further states that it is his understanding that Mr. Gough left the meeting voluntarily after making his presentation to the board and “was not subsequently asked to leave the meeting.”
In a reply dated September 28, 2016, Mr. Gough cites the meeting minutes, which state: “The appealers were told that appeals were heard individually and that other appealers would be asked to step in the hall until called for their case, and that a brief training and appointment of the chairman would be necessary.” He cites KRS 61.810(1), which provides that absent any exception:
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 ….
(Emphasis added.) Mr. Gough additionally cites KRS 133.030(2), which specifies in part:
The first regular meeting day of the board shall be devoted to the orientation and training program provided for in KRS 133.020(5), to a review of the assessment of the property valuation administrator and his deputies, and to a review of the appeals filed with the county clerk as clerk of the board ….
He argues, therefore, “that the orientation and training program is intended to be a meeting, and therefore subject to the provisions of the Open Meetings Act.” He reiterates that in addition to being trained in private concerning their public duties, the board “also met in private to be sworn in per KRS 133.020(4), as well as the picking of the chairman of the board per KRS 133.020(1)(e)(4),” as well as conducting “a quorum meeting privately with the [PVA] right before the board was scheduled to review the assessment on her own personally held property.”
A county board of assessment appeals has authority under KRS 133.120 to hear appeals from taxpayers in protest of assessments by the PVA. The Board is a public agency for purposes of the Open Meetings Act. 15-OMD-154. As quoted above, KRS 61.810(1) provides that, in the absence of a listed exception, “[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.”
It is undisputed that a quorum of the Board’s members convened in a closed meeting with the PVA to receive training regarding their public functions. In 03-OMD-178, the Spencer County Board of Education, at the beginning of its meeting, had held a private training session with its general counsel regarding hearing procedures. We rejected the board’s claim that those “procedural matters attendant to the hearing” did not constitute public business, and we likewise reject that argument here. Furthermore, since the individual hearings were clearly public business, it was unlawful to exclude Mr. Gough and the rest of the public from those hearings. Therefore, we conclude that the Board acted in violation of KRS 61.810(1) by conducting a closed meeting without legal authority.
We note that the minutes and the record are inconclusive as to whether appellants before the Board were directed to leave after their individual appeals were concluded. If so, however, this was in violation of the Open Meetings Act just as was the directive for appellants to wait in the hall. The same is true of the swearing in of members and selection of a chairman, which do not appear in the meeting minutes; these are public acts, and if they were in fact performed in a closed session, as alleged by Mr. Gough, this was a further violation of KRS 61.810(1).
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Andy Beshear
Attorney General
James M. Herrick
Assistant Attorney General
#383
Distributed to:
Mr. Ray Gough
Ryan Stanger, Chairman
K. Bryan Ernstberger, Esq.