24-OMD-222
October 11, 2024
In re: Brian Mackey/Department of Fish and Wildlife Resources Commission
Summary: The Department of Fish and Wildlife Resources Commission
(“the Commission”) violated the Open Meetings Act (“the Act”) when it
failed to issue a written response to a complaint within three business
days. The Commission did not violate the Act when it conducted a closed
session to discuss the reappointment of an employee under
KRS 61.810(1)(f).
Open Meetings Decision
On September 23, 2024, Brian Mackey (“the Appellant”) submitted a complaint
by email to the Chair of the Commission alleging it violated the Act by (1) conducting
a closed session meeting to discuss renewing the contract of the Commissioner of the
Department of Fish and Wildlife (“the Department”) and (2) making a motion
regarding the Commissioner’s contract renewal that was “vague and indefinite.”
Having received no response from the Commission, the Appellant initiated this
appeal on September 27, 2024.
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. The Commission argues
that the Appellant’s complaint was not submitted to its presiding officer and,
therefore, the Office does not have jurisdiction to consider the complaint.
The Appellant submitted his complaint by email to Commission member Josh
Lillard, who is identified as the Commission’s Chair on its website.1 The Commission
asserts that the Commissioner of the Department is the presiding officer of the
1
See
“District
Commission
Members”
available
at
https://fw.ky.gov/More/
Pages/District-Commission-Members.aspx (last accessed Oct. 11, 2024).Commission to whom open meeting complaints should be directed. As support for this
claim, the Commission notes that it meets on “date[s] to be determined and fixed by
the commissioner,” see KRS 150.023(1), and that the Commissioner “shall have
general supervision and control of all activities, functions, appointments, and
employees of the department,” KRS 150.061(4). Indeed, the Commission is correct
that the Commissioner has general control of the Department. However, the
Appellant alleges the Commission violated the Act, not the Department.
The Commission is composed of nine members from each commission district.
KRS 150.022(1). Each member of the Commission is appointed by the Governor
subject to confirmation by the Senate. KRS 150.022(2). The Commissioner of the
Department is not a member of the Commission. Rather, the Commission has “the
sole authority to appoint a commissioner of the Department.” KRS 150.061(1).
Because the Commissioner is not a member of the Commission, he is not its presiding
officer. See 22-OMD-177 (finding the complainant had not perfected his appeal
regarding a school Site Based Decision Making Council by submitting his complaint
to the superintendent of the school district). Here, the presiding officer of the
Commission is Chair Josh Lillard. Accordingly, the Appellant did submit his
complaint to the presiding officer of the Commission, and the Office therefore has
jurisdiction to consider his complaint.
Upon receiving a complaint alleging a violation of the Act, a “public agency
shall determine within three (3) business 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.” KRS 61.846(1). On appeal, the Commission does not deny that it failed to
respond to the Appellant’s complaint.2 Thus, the Commission violated the Act.
Turning to the merits of the Appellant’s complaint, under KRS 61.810(1)(f), a
public agency may enter closed session to hold discussions “which might lead to the
appointment, discipline, or dismissal of an individual employee, member, or student.”
That exception, however, does not “permit discussion of general personnel matters in
secret.” Id.
The Appellant maintains that the Commissioner is an independent contractor
and not an employee. As proof that the Commissioner is an independent contractor,
the Appellant points to the Commissioner’s lack of certain employment benefits and
2
Instead, the Commission argues that a complaint alleging a violation of the Act does not comply
with KRS 61.846(1) when submitted by email to an agency. That provision requires the complainant
to “submit a written complaint” to the agency’s presiding officer. The Office has previously held that
“the expansive meaning of the word ‘submit’ indicates that transmission of the written complaint can
occur by email.” 20-OMD-035. Moreover, the Office routinely treats complaints that were submitted
to an agency’s presiding officer by email as having satisfied the requirements of KRS 61.846(1). See,
e.g., 24-OMD-215; 24-OMD-191; 23-OMD-339; 21-OMD-134.the fact that his contracts refer to him as a “contractor.” From this, the Appellant
concludes that the Commission was not permitted to enter a closed session at its
August 30, 2024, meeting to discuss reappointing the Commissioner and offering him
a new four-year contract.3 See Carter v. Smith, 366 S.W.3d 414, 421 (Ky. 2012)
(holding that public agencies may not rely on KRS 61.810(1)(f) to discuss an
employee’s voluntary resignation and subsequent reemployment as an independent
contractor).
“[A]n independent contractor is distinct from an employee, the former being
someone who is hired to undertake a specific project and is free to choose the means
and methods for completing the work, and the latter being someone who works under
an express or implied contract for an employer who determines the means and
methods by which the employee performs and completes the work.” Id. The
Commissioner of the Department works under contract, KRS 150.061(1), his
performance is subject to annual review by the Commission, KRS 150.061(1)(a), his
salary is fixed and set by the Commission, KRS 150.061(2), he is advised by the
Commission regarding actions to take to benefit the Department, KRS 150.023(2),
and his reappointment or removal as Commissioner is controlled by the Commission,
KRS 150.061(1)(b) and (c). Thus, it appears that the Commissioner is more like an
employee than an independent contractor. Moreover, the Office has previously held
that KRS 61.810(f) permitted the Commission to conduct discussions about the
reappointment of the Commissioner in closed session. See 21-OMD-091. That decision
was subsequently affirmed by the Franklin Circuit Court.4 The Office sees no reason
to depart from its prior decision.5
In the alternative, the Appellant argues the Commission violated the Act by
negotiating the Commissioner’s new contract in closed session. But the Office has
previously found that “KRS 61.810(1)(f) authorize[s] the Commission to hold these
discussions in closed session.” 21-OMD-091; see, e.g., 96-OMD-097 (finding that a
public agency properly relied on KRS 61.810(1)(f) to conduct contract negotiations
with the agency’s preferred appointee when the contract had not yet been approved
by the agency or prospective appointee). Accordingly, the Commission did not violate
3
The Appellant does not allege any deficiencies regarding the Commission’s notice of the “general
nature of the business to be discussed in closed session, the reason for the closed session, and the
specific provision of KRS 61.810 authorizing the closed session.” See KRS 61.815(1)(a).
4
See Richards v. Commonwealth, Fish & Wildlife Res. Comm’n, No. 21-CI-00483, (Franklin Cir. Ct.
July 14, 2022) (“[I]nsofar as the Closed Meetings dealt with ‘reappointing’ Storm to the position of
Commissioner, they would be covered by the KRS 61.810(1)(f) exception.”).
5
Further, it appears that the General Assembly intended for the Commission’s discussions about
the retention of its Commissioner to occur in closed session. See KRS 150.061(1)(a) (requiring the
Commissioner’s annual review to be held in closed session). The fact that the General Assembly
requires the Commissioner’s review to be conducted in closed session, and that the Commission is
further authorized to “reappoint” its Commissioner, KRS 150.061(1)(c), supports the conclusion that
the Commission was authorized by law to conduct these discussions in closed session.the Act when it discussed the Commissioner’s contract in closed session at its August
30, 2024, meeting.6
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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#395
Distributed to:
Brian Mackey
Josh Lillard
Rich Storm
6
The Appellant also alleges the Commission’s oral motion regarding approval of the Commissioner’s
reappointment differed from the motion as transcribed in the Commission’s meeting minutes. The oral
motion stated the Commission would “move forward with consideration for the” Commissioner’s
contract. The meeting minutes state, “The Commission unanimously approved the . . . Renewal of the
personal service contract for” the Commissioner. Under KRS 61.835, “The minutes of action taken at
every meeting of any such public agency, setting forth an accurate record of votes and actions at such
meetings, shall be promptly recorded . . . .” (emphasis added). In response, the Commission agrees that
“the wording of the motion was somewhat ambiguous.” But the Commissioner’s new contract has yet
to be executed, and the Commission states it will not execute it until after its next meeting, at which
it will “include an action item to clarify the intent of the August 30th motion on the Commissioner’s
employment contract.” Thus, the Commission will clarify any discrepancy between the oral motion and
its meeting minutes.