24-OMD-200
September 18, 2024
In re: Tina Burnell/Louisville/Jefferson County Metro Government Ethics
Commission
Summary: The Office of the Attorney General (“the Office”) lacks
jurisdiction
to
consider
a
complaint
alleging
that
the
Louisville/Jefferson County Metro Government Ethics Commission
(“the Commission”) violated the Open Meetings Act (“the Act”) because
the complaint was not first submitted to the presiding officer of the
public agency accused of violating the Act.
Open Meetings Decision
On August 23, 2024, at 7:04 p.m., Tina Burnell (“the Appellant”) submitted a
complaint by email to the Commission’s Metro HR Staff Liaison and the
Commission’s independent legal counsel.1 In her complaint, the Appellant claimed
the Commission had violated the Act at its July 18, 2024, meeting by using a room
with unsatisfactory acoustics and “by requiring attendees to identify themselves in
order to attend the meeting.” As a remedy, the Appellant proposed that the
Commission use “audio equipment” to enhance audibility and that all members be
instructed not to require attendees to identify themselves at public meetings. Having
received no response from the Commission by September 3, 2024, the Appellant
initiated this appeal.
As an initial matter, the Office must be assured of its jurisdiction before it may
render a decision under KRS 61.846(2). A complainant’s request for the Attorney
General to review an agency’s denial of a complaint submitted under the Act is a
statutory proceeding created by the General Assembly as an act of legislative grace.
As such, a complainant must strictly comply with KRS 61.846 before invoking the
Attorney General’s jurisdiction to review the complaint. See, e.g., 24-OMD-133; 22-
OMD-177.
1
On appeal, the Commission’s counsel explains that he did not receive the complaint because it was
“impounded by [his] law office’s spam filter.”To invoke the Attorney General’s review under KRS 61.846(2), a complainant
“shall begin enforcement” under subsection (1) of the statute. KRS 61.846(1). That
provision requires the complainant to “submit a written complaint to the presiding
officer of the public agency suspected of” violating the Act. Id. Accordingly, to begin
enforcement, the complaint may not be submitted to just any person at “the public
agency suspected” of committing the violation; rather, the complaint must be sent to
the agency’s “presiding officer.” In 22-OMD-177, the Office dismissed a complaint
alleging the Jefferson County Public Schools Site Based Decision Making Council had
violated the Act because the complainant failed to submit his complaint to the
presiding officer of that agency. Rather, he submitted his complaint to the
Superintendent of the Jefferson County Public Schools and the school district’s
general counsel.
Similarly, here, the Appellant submitted her complaint to a staff member and
the Commission’s private counsel, not to the “presiding officer” of the Commission.2
The Appellant’s sole explanation for submitting the complaint in this manner is that
the Commission’s webpage did not list the email address of the presiding officer, but
only that of the staff liaison. However, the Act requires neither that open meetings
complaints be submitted by email nor that a public agency list the presiding officer’s
email address on its website. The Appellant could have submitted her complaint to
the presiding officer by mail or by hand delivery. Further, the Appellant could have
obtained the presiding officer’s email address by making an inquiry to the staff
liaison. Because the Appellant did not comply with KRS 61.846(1) by submitting a
copy of her complaint to the presiding officer of the Commission before initiating this
appeal, the Office lacks jurisdiction under KRS 61.846(2) and therefore dismisses this
appeal.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
2
In its response to this appeal, the Commission identifies the presiding officer as Chairperson
Delores Pregliasco.Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#374
Distributed to:
Ms. Tina Burnell
F. Todd Lewis, Esq.
Alice Lyon, Esq.
Annale R. Taylor, Esq.
Natalie S. Johnson, Esq.
Nicole Pang, Esq.