Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Jefferson County Board of Assessment Appeals ("JCBAA") violated the Open Meetings Act in not responding to a complaint and in conducting deliberations in closed session. We find that the JCBAA violated the Open Meetings Act in failing to respond to a complaint within three business days, but did not violate the Open Meetings Act in deliberating in closed session with only JCBAA members and staff present.
JCBAA held a meeting on July 25, 2016, at which the appeal of Fulton's clients, Timothy and Michelle Jones, was heard. On December 4, 2016, Fulton submitted an open meetings complaint to JCBAA, arguing that "the policy in place at that time allowed the Board to bring Jefferson County PVA [property valuation administrator] representatives officers back into the room during the deliberation process . . . . In violation of KRS 61.810(1)(j), this policy allowed PVA representatives, prior to the Joneses appeal, to be called back for multiple Board deliberations . . . ." JCBAA did not respond to that complaint. Fulton initiated this appeal on December 13, 2016, in which he reiterated the allegations in his complaint.
JCBAA responded to the appeal on December 21, 2016. JCBAA began by referring to 16-OMD-183 for context. JCBAA then argued that
Mr. Fulton seems to concede that the policy disapproved in 16-OMD-183 had been changed as of July 20, 2016 . . . . However, in Mr. Fulton's December 4, 2016 "Complaint," he does not allege that PVA representatives were allowed into the July 25 deliberations while the Jones were included or excluded. Nor does he allege that anyone was called into the room while deliberations concerning the Jones, or anyone else, were ongoing.
. . . Frankly, we are unable to figure out from Mr. Fulton's complaint exactly what the JCBAA may have done on July 25 that allegedly violated the open meetings law.
Fulton replied to JCBAA's response on December 26, 2016. Fulton described JCBAA's response as "a shift in the position that was expressed as late as November 21, 2016 . . . that the conduct of the Board's meetings had been fully remedied." 1 Fulton attached a letter dated July 29, 2016 from Matthew Golden, Civil Division Director for the Jefferson County Attorney, to Fulton, in which Golden described a policy that "should the arbiters need additional information, both the PVA and the taxpayer are invited into the room pursuant to KRS 133.120(3)(e)." Fulton also attached a letter from him to the Department of Revenue dated November 6, 2016, in which he questioned that policy. The Department of Revenue responded to Fulton on November 10, 2016, stating that "if the [JCBAA] determines that it needs to ask additional questions in order to complete its deliberations, the [JCBAA] can, of course, ask those questions of the taxpayer and the PVA. However, the [JCBAA] will have to go back into open session . . . ." Fulton concluded his reply by stating that if the Department of Revenue's letter "will be implemented as policy prior to the Board's next session, please consider my complaint withdrawn . . . . If the Jefferson County Attorney should not agree to implement the above noted policy . . ., then I reiterate what I expressed in my original complaint."
KRS 61.846(1) provides that upon receiving an open meetings complaint, "the public agency shall determine within three (3) days . . . 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." It is not disputed that JCBAA did not respond to Fulton's December 4, 2016 complaint. In not responding to Fulton's December 4, 2016 complaint, JCBAA violated the Open Meetings Act.
KRS 61.800 provides that "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." KRS 61.810(1)(j) excepts from the Open Meetings Act "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." KRS 61.810(1)(j) allows judicial or quasi-judicial bodies, such as the JCBAA, to deliberate in closed session, provided that only the agency's governing body and staff are present. This exception does not apply when persons who are not part of the agency's governing body or staff, in this context, an appellant or a property valuation administrator, are present for the deliberations; such deliberations must be held in open session. However, Fulton does not allege that any deliberations concerning his clients were held in the presence of anyone other than JCBAA members or staff.
JCBAA appears to base its policy, in which both the appellant and the property valuation administrator are invited into the deliberations, on KRS 133.120(3)(e), which provides that "the board of assessment appeals shall only hear and consider evidence which has been submitted to it in the presence of both the property valuation administrator or his or her designated deputy and the taxpayer or his or her authorized representative." However, KRS 133.120(3)(e) should be read in conjunction with the Open Meetings Act. "When construing multiple statutes, it is our duty to read all statutes in harmony with one another in order to effectuate all statutes, if possible." Castle v. Commonwealth, 411 S.W.3d 754, 757-58 (Ky. 2013). Reading KRS 61.846(1)(j) in conjunction with KRS 133.120(3)(e), KRS 61.846(1)(j) only excepts deliberations where only agency members and staff are present, and KRS 133.120(3)(e) requires that any additional information be presented only when both the appellant and property valuation administrator are present. KRS 133.120(3)(e) does not create an additional exception to the Open Meetings Act in which additional information may be presented in deliberations in the presence of the appellant and property valuation administrator, but still in closed session. The Department of Revenue's interpretation is thus correct, and JCBAA should conduct the presentation of any additional information by an appellant or property valuation administrator in open session, and in accordance with KRS 133.120(3)(e), both the appellant and the property valuation administrator should be present in that open session.
Regardless, although JCBAA's policy as stated may not harmonize with the Open Meetings Act, Fulton still does not allege any violation of the Open Meetings Act as it pertains to his clients, the Joneses, as he does not allege that anyone other than JCBAA members and staff were present for the closed session deliberation. Accordingly, we do not find that JCBAA violated the Open Meetings Act in its deliberation of the Joneses' appeal in closed session.
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.
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