25-OMD-110
April 30, 2025
In re: Jason O’Bannon/London City Council
Summary: In appeals to the Office under the Open Meetings Act (“the
Act”), the Office cannot resolve factual disputes or determine the
credibility of witnesses. Accordingly, the Office cannot find that the
London City Council (“the Council”) violated KRS 61.810(2) by holding
a series of less-than-quorum meetings.
Open Meetings Decision
Jason O’Bannon (“the Appellant”) submitted a complaint to the presiding
officer of the Council alleging it had violated the Act by holding a series of less-than-
quorum meetings regarding who would fill a vacancy on the Council. Specifically, the
Appellant alleged that three of the Council’s remaining five members met in secret
before its special meetings on January 29 and 31, 2025, to discuss a particular
individual’s candidacy. In a timely response, the Council denied that the three
members discussed the subject outside of those two public meetings. 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,” except in certain
situations not relevant here. Moreover, under KRS 61.810(2), “[a]ny 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
[KRS 61.810(1)], shall be subject to” KRS 61.810(1). In other words, a public agency
may not intentionally avoid the Act’s requirement to discuss or take action on public
business in a meeting open to the public by holding smaller meetings that, when thosein attendance are combined, would result in a quorum of the members having
discussed or taken action on such public business.
Before proceeding to the merits of the Appellant’s complaint, the Office must
first address its limitations. While the Attorney General recognizes his duty to review
complaints and agencies’ responses thereto to determine whether a violation of the
Act has occurred, KRS 61.846(2), the Office cannot resolve competing factual claims
about events that may or may not have transpired. See, e.g., 00-OMD-169. The Act
does not permit the Office to issue subpoenas, take testimony, or judge the credibility
of witnesses. Nor could it, even if authorized to do so, in the short time frame allowed
this Office to render a decision. See KRS 61.846(2) (requiring the Attorney General
to issue a decision within ten business days). Disputes that turn heavily on competing
evidence are better suited for review in circuit court. See KRS 61.848; see also 23-
OMD-103 (finding the Office could not resolve a factual dispute regarding alleged
violations of KRS 61.810(2)). This is one such case.
Here, the Appellant has not provided evidence to support his claim that three
Council members violated KRS 61.810(2) by discussing who would fill a vacancy on
the Council. Instead, he describes the events of the meetings on January 29 and 31,
2025, concluding that the three Council members must have met prior to those
meetings. According to the Appellant, the three Council members prepared a
Facebook post on January 24, 2025, which described the vacancy, stated the
requirements for qualification, and invited applicants to appear at the upcoming
January 29 meeting. Two individuals appeared at the January 29 meeting to state
their interest in the vacant seat. Subsequently, at the January 31 meeting, the
Council selected an individual to fill the vacancy who had not appeared at the
January 29 meeting1 or otherwise publicly communicated his desire and willingness
to join the Council. Thus, according to the Appellant, the three Council members must
have met prior to the January 29 and 31 meetings to confirm that the new Council
member would accept his nomination.2
For its part, the Council maintains its position that “the allegations are
unfounded and false.” Moreover, the Council has provided the affidavits of the three
Council members, who swear they did not engage in the alleged conversations.
1
KRS 83A.040(5) requires the remaining members of a city legislative body to fill the vacancy within
30 days.
2
The Appellant also alleges the existence of an audio recording, created between the January 29
and 31 meetings, in which a Council member told a candidate for the vacant Council seat he should
not seek the seat because the three Council members had already selected a new member. The alleged
audio recording was not provided to the Office.Specifically, the Council members deny ever meeting in person or over the phone to
discuss the appointment of a new member, either individually or as a quorum of
Council members. Moreover, the Council explains that the Facebook post was created
by a single Council member to ensure that individuals interested in the vacant seat
knew to appear at the January 29 meeting.
Thus, the record here contains the Appellant’s circumstantial allegation that
the secret meetings must have occurred, the description of an alleged audio recording,
and affidavits in support of the Council, in which the affiants swear no such secret
meetings occurred. “The mere stated belief that secret meetings occurred is not
evidence that they did occur, especially not when rebutted by the [Council] members,
who swear such meetings did not occur.” 23-OMD-103; see also 18-OMD-060 (mere
speculation that secret meetings must have occurred is insufficient). The Appellant’s
argument, at best, presents a factual dispute regarding the credibility of the Council
members’ affidavits. At bottom, the Appellant speculates that the three Council
members must have met in secret, while the three Council members swear that they
did not. Accordingly, this Office cannot find the Council conducted a series of less-
than-quorum meetings in violation of the Act.
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
#162
Distributed to:
Jason O’Bannon
Randall Weddle, Mayor, City of London
Conrad A. Cessna, Esq.