Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Jefferson County Board of Assessment Appeals ("Board") violated the Open Meetings Act by permitting a representative of the office of the Jefferson County Property Valuation Administrator (PVA) into its closed session and by not timely issuing its decision in response to the complaint. As set forth below, we find that the Board violated the Act in both of those respects.
Donald Fulton states that he was an observer of a panel 1 of the Board on the morning of July 12, 2017, where property owners gave a presentation to the Board. After the property owners' presentation, they were dismissed from the hearing, along with the PVA representative and Mr. Fulton. It was Mr. Fulton's understanding that the Board was going into closed session to deliberate the appeal, but he states that the PVA representative was shortly asked to return to the room. Mr. Fulton entered the room with the PVA representative but was told by one of the Board members that he had to leave. He explained his understanding that if the PVA representative was asked back into the room once the deliberation process began, then it became an open meeting for the public to be present during that time. He was again directed to leave and did so after explaining to the Board that, as long as the Jefferson County PVA employee was in the hearing room with the Board members, their closed-door deliberations then became open to the public. Mr. Fulton filed a complaint with the Board, through the Jefferson County Clerk's Office, on that same day, July 12, 2017. His complaint recounted the events that took place at the Board meeting and recommended certain actions to remedy the open meeting violations. He stated that he received no response from the Board and filed his appeal by letter dated July 24, 2017.
Matthew J. Golden, Director, Civil Division, Jefferson County Attorney's Office (JCAO), responded to the appeal on behalf of the Board. In regards to the timeliness of responding to Mr. Fulton's open meetings complaint, Mr. Golden explained that he had emailed Mr. Fulton on July 17, in response to an open records request, 2 but had also stated he was "in the process of reviewing your other latest missives and will respond." We understand, from Mr. Golden's response to this office, that, by "missives, " he was referring to Mr. Fulton's open meetings complaint of July 12, 2017, and a separate open meetings complaint filed on July 15, 2017. By letter dated, July 27, 2017, Mr. Golden fully responded to Mr. Fulton's open meetings complaint of July 12, 2017, as part of a comprehensive answer to both open meeting complaints:
Regarding your July 12, 2017, allegation of an open meeting violation, it is my understanding from your letter that you were present as an observer at Board Panel No. 2 and were excluded. It does appear from the face of your complaint that this may have been inconsistent with the Open Meeting Act. You should not have been excluded. The board members have been, subsequent to July 12, 2017, re-advised of the importance and necessity of having assessment appeals be conducted at open meetings in the presence of the litigants and the public . . ."
Analysis: In 16-OMD-183, one of the issues complained of was that the Board was "routinely allowing representatives of the Jefferson County Property Valuation Administrator (PVA) to be present during closed deliberations of the Board, in violation KRS 61.810(1)(j)." We have essentially the same complaint in this appeal.
KRS 61.810(1)(j) authorizes the exclusion of the public from:
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.) The responses on behalf of the Board have not denied that Mr. Fulton was excluded from the closed deliberative session of the Board while a representative of the Jefferson County PVA was asked to be present during its closed deliberations; nor has it contended that the PVA's representative is regarded as "staff. " This office has long held that "selective admission" to closed sessions of public agencies is impermissible. See, e.g., OAG 92-146 (holding that "a public meeting of a public body is either open to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act, and there is no principle of selective admission set forth in the Open Meetings Act" ); see also KRS 61.810(1) (declaring 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"); accord 00-OMD-219. Nevertheless, this office has, on occasion, recognized that the presence of a non-member, including an employee of the agency, the attorney for the agency, or a third party, does not constitute selective admission where that employee, attorney, or third party's presence is necessary to the conduct of the closed session. Thus, an agency clerk may be needed to take notes during a closed session, an agency attorney may be needed to provide advice on legal issues, and a third party may be needed to "contribute information or advice on the subject matter under discussion." 3 00-OMD-219, p. 5. Further, "In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the session. " OAG 77-560, p. 2.
Having received no explanation for the presence of the PVA representative in the closed deliberative session of the Board on July 12, 2017, we must conclude that the representative's presence in the closed session constituted selective admission. Accordingly, the record shows, and we conclude, that the Board allowed the PVA's representative into the deliberations on July 12, 2017, in violation of KRS 61.810(1)(j).
We next address the response to Mr. Fulton's open meetings appeal by JCAO, on behalf of the Board. 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." Mr. Golden responded to Mr. Fulton's open meetings complaint on July 17, 2017, within the three day period, stating: "I am in the process of reviewing your other latest missives and will respond." In that response, Mr. Golden was apparently referring to this appeal and a separate open meetings complaint served by Mr. Fulton on Saturday, July 15, 2017. Mr. Golden substantively responded to the open meetings complaints, including the one at issue in this appeal, on July 27, 2017. Nevertheless, the agency did not notify the complainant within three days of its decision whether to remedy the alleged violation. In not responding to that complaint with a decision within three days, the Board violated the Open Meetings Act. As the Kentucky Court of Appeals observed when interpreting the procedural requirements of the Open Records Act, which apply with equal force to parallel requirements of the Open Meetings Act, "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-OMD-029, p. 4. Simply put, KRS 61.846(1), as interpreted by the courts and prior decisions of this office, requires a public agency to issue a written response within three business days of receiving a complaint, notifying the complainant of its decision. Failure to notify the complainant of the public agency's decision within three business days constitutes a violation of the Open Meetings Act. Id. 09-OMD-213, 00-OMD-142; 97-OMD-43; 96-OMD-261. Merely stating that the agency will respond (as in Mr. Golden's email to Mr. Fulton on July 17, 2017) does not comply with the statute's requirement to notify the complainant of its decision. While we recognize that JCAO was attempting to answer both of Mr. Fulton's open meeting complaints in a comprehensive manner, the Act does not provide for delay beyond three days. As the decision was not issued until July 27, 2017, the Board procedurally violated KRS 61.846(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.
Footnotes
Footnotes
1 A county board of assessment appeals has authority under KRS 133.120 to hear appeals from taxpayers in protest of assessments by the PVA. Temporary hearing panels may be created pursuant to KRS 133.020 for large volumes of appeals, the members having the same qualifications and appointment procedures as board members. The Board of Assessment Appeals is a public agency for purposes of the Open Meetings Act. 15-OMD-154.
2 Mr. Fulton had also filed an open records request with the Board, received July 14, 2017 by JCAO, and filed a separate open meetings complaint on Saturday, July 15, 2017. On July 17, Frank Friday, an attorney with the Jefferson County Clerk's Office, sent Mr. Fulton an email response to the open records request. Mr. Golden also sent an email to Mr. Fulton that same day to clarify Mr. Friday's response. It was in that email that Mr. Golden stated that he was "in the process of reviewing your other latest missives and will respond."
3 In those cases of non-member third party attendance in closed session, this office has strongly admonished that the third party "who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served" and where the agency "explain[s] why such persons are invited into the session." OAG 77-560, p. 2, quoted in 00-OMD-219, p. 5. Such limitations do not normally apply to an agency employee or the agency's attorney.