25-OMD-057
March 4, 2025
In re: Tanyqua
Oliver/Lexington–Fayette
Urban
County
Government
Administrative Hearings Board
Summary: The Lexington-Fayette Urban County Government
Administrative Hearings Board (“the Board”) did not violate the Open
Meetings Act (“the Act”) by holding a series of less-than-quorum
meetings.
Open Meetings Decision
Tanyqua Oliver (“Appellant”) submitted two complaints to the Board’s
presiding officer alleging the Board was holding meetings without making its
schedule of regular meetings available as required by KRS 61.820, and without
making its meeting minutes available as required by KRS 61.835. Specifically, the
Appellant alleged the Board’s hearings on appeals of code violations are meetings
subject to the requirements of the Act. As a remedy, the Appellant proposed that the
Board post its schedule of meetings online and that the Board withdraw every
“violation[,] lien[,] and fee placed upon any and [every] property owner that resulted
in seizure of property in the entire history of” the Board. In response, the Board
explained that “administrative appeals of citations heard by administrative hearing
officers of the [Board]” do not “qualify as public meetings” under the Act “because
they do not involve a quorum of the Board.”1 This appeal followed.
Under KRS 61.810(1), “[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.” Under
KRS 61.820, “[t]he schedule or regular meetings shall be made available to the
1
The Board also stated it would, nonetheless, provide public notice of administrative appeal
hearings on its website. The Board also advised the Appellant that records of actions taken at, and the
videos of, the Board’s hearings are available upon request under the Open Records Act.public.” And under KRS 61.835, “[t]he 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 and such records shall be open to public
inspection. . . .”
Here, the Board explains it is a “quasi-judicial body” authorized to “issue
remedial orders and impose civil fines as a method of enforcing a local government
ordinance when a violation of the ordinance has been classified as a civil offense.”
KRS 65.8808(1). To exercise that power, the Board may “assign a hearing officer to
conduct a hearing, to determine whether there has been a violation of any local
government ordinance that the board has jurisdiction to enforce.” KRS 65.8821(2).
“Any member of the code enforcement board, including the chair, may be assigned as
a hearing officer.” KRS 65.8829(2)(a). The Board states that “a hearing officer was
assigned to preside over code enforcement hearings,” and that the hearing officer did
so alone. Accordingly, the Board argues, “a quorum of the members” of the Board did
not attend any hearing, and the hearings did not constitute public meetings under
the Act.
However, the Appellant asserts that the series of hearings are, instead, a
public meeting under KRS 61.810(2). That statute provides:
Any series of less than quorum meetings, where the members attending
one (1) or more of the meetings collectively constitute at least a quorum
of the members of the public agency and where the meetings are held
for the purpose of avoiding the requirements of subsection (1) of this
section, shall be subject to the requirements of subsection (1) of this
section. Nothing in this subsection shall be construed to prohibit
discussions between individual members where the purpose of the
discussions is to educate the members on specific issues.
Thus, the Act not only prohibits a quorum of the members from taking action in
private, but also “prohibits a quorum from discussing public business in private or
meeting in number less than a quorum for the express purpose of avoiding the open
meeting requirement of the Act.” Yeoman v. Commonwealth, Health Policy Bd., 983
S.W.2d 459, 474 (Ky. 1998) (emphasis added). Furthermore, a series of less-than-
quorum meetings must be held “for the purpose” of avoiding the obligations of the
Act. KRS 61.810(2). In essence, KRS 61.810(2) contains a mens rea requirement. See
Elm Street/McCracken Pike Pres. All., Inc. v. Siegelman, No. 2005-CA-002079, 2007
WL 3228090, at *5 (Ky. App. Nov. 2, 2007).Here, the Appellant asserts the Board “rotates” its members as hearing officers
“to avoid the requirements of” the Act. But that allegation, standing alone, does not
establish that the Board assigns its members as hearing officers to avoid the
requirements of the Act. Moreover, the Board is expressly authorized by statute to
assign its members as hearing officers to conduct these hearings individually, and
not as a group. See KRS 65.8829(2)(a).
To the extent there is a conflict between KRS 65.8829(2)(a), which applies to
code enforcement boards, and KRS 61.810(2), which generally applies to all public
agencies, the Office turns to the canons of statutory construction. “In harmonizing
the conflict between two statutes that relate to the same subject, Kentucky follows
the rule of statutory construction that the more specific statute controls over the more
general statute.” Light v. City of Louisville, 248, S.W.3d 559, 563 (Ky. 2008). Here,
KRS 65.8829(2)(a)—the more specific statute—specifically grants authority to code
enforcement boards to assign a single member to act as the hearing officer in an
administrative case. It therefore controls over KRS 61.810(2)—the more general
statute—which generally prohibits less-than-quorum meetings by any public agency.
Thus, an agency does not violate KRS 61.810(2) when it acts pursuant to its express
statutory authority to act in numbers less than a quorum. Accordingly, the Board did
not violate the Act by conducting a series of less-than-quorum meetings.
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#071
Distributed to:
Tanyqua Oliver
Michael Cravens, Managing Attorney, Department of Law, Lexington-Fayette
Urban County Government
Evan P. Thompson, Attorney, Lexington-Fayette Urban County Government