TO BE PUBLISHED
September 16, 1994
IN RE: William D. Boarman/Ohio County Fiscal Court
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal by William D. Boarman from the written response of Dudley Cooper, County Judge/Executive of Ohio County. Mr. Boarman has requested that the Attorney General reverse the results of the action taken by the fiscal court relative to a particular matter.
In a letter to the county judge/executive, dated August 15, 1994, Mr. Boarman complained of violations of the Open Meetings Act by the fiscal court. He said that prior to the fiscal court meeting of June 23, 1994, the county judge/executive and each of the fiscal court members met individually with the county's industrial recruiter and representatives of a private corporation to be advised as to the company's requirements for locating in the county which included the adoption of a tax. Mr. Boarman said five members of the fiscal court committed to the adoption of the tax at those meetings.
While Mr. Boarman conceded that some of the matters discussed at those meetings could have been excluded from the public under KRS 61.810(1)(g), that exception is for "discussions" only. He maintained that the limitations set forth in the exception were exceeded and the meetings with the fiscal court members individually were an attempt to circumvent KRS 61.810(1) and (2).
Mr. Boarman said that the fiscal court at its meeting of June 23, 1994, proposed and voted favorably for the tax in
question. On July 14, 1994, the proposed tax ordinance had its second reading and it was passed despite a petition signed by 2500 persons against the tax.
The county judge/executive was asked to void and nullify the taxing ordinance in question because of the fiscal court's alleged violations of the Open Meetings Act.
Ohio County Judge/Executive Dudley Cooper responded to Mr. Boarman in a letter dated August 18, 1994. He admitted there were meetings with the industrial recruiter and representatives of the private corporation which were attended by various members of the fiscal court. The county judge/executive said such meetings were exempt from the requirement of open and public meetings because of KRS 61.810(1)(g). He further stated that meetings of less than a quorum of the members of the public agency are not covered by the Open Meetings Act and he maintained that no action was taken at those meetings.
In his letter of appeal to this office, received August 25, 1994, Mr. Boarman questions the fiscal court's reliance upon KRS 61.810(1)(g) because he is of the opinion that the fiscal court did more than discuss matters. He maintains that commitments were made by fiscal court members at the meetings they attended individually with the industrial recruiter and the representatives of the private corporation.
In regard to the role of the Attorney General relative to appeals under the Open Meetings Act, KRS 61.846(2) provides in part that this office shall review the complaint and denial and issue a written decision which states whether the public agency violated the provisions of the Act. Only a court of competent jurisdiction has the authority to void action taken by a public agency in violation of the Open Meetings Act. KRS 61.848(5).
Among the exceptions to open and public meetings is KRS 61.810(1)(g) which authorizes a public body, such as a fiscal court, to go into a closed or executive session relative to:
Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the
siting, retention, expansion, or upgrading of the business[.]
KRS 61.815(1)(c) provides that a public body cannot take any final action in a closed session.
Thus, if the fiscal court, as a body, were engaged in a properly called regular or special fiscal court meeting, it could have gone into a closed session by citing KRS 61.810(1)(g) and following the requirements of KRS 61.815(1) to discuss (but not act on) the possible location of a specific corporate entity to a site in the county.
From the facts presented, however, the fiscal court was not involved in a regular or special meeting. Its members were meeting individually or in small groups (less than a quorum) with the county's industrial recruiter and persons from a private corporation. The exception to open meetings set forth in KRS 61.810(1)(g) is not applicable to such a situation.
KRS 61.810(1) does state in part that meetings of a quorum of the members of a public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings and open to the public. To address those situations where a public agency engaged in meetings with less than a quorum of its members to avoid the applicability of the provisions of the Open Meetings Act, the General Assembly in 1992 enacted what has become KRS 61.810(2) which states:
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 discussion is to educate the members on specific issues.
The above quoted statutory provision certainly represents an attempt by the General Assembly to prohibit a public agency from getting together with less than a quorum
of its members to discuss issues of public concern outside the coverage and applicability of the Open Meetings Act.
It is, therefore, the decision of the Attorney General that the fiscal court violated the provisions of the Open Meetings Act when its members met individually or in small groups in a series of meetings with the county's industrial recruiter and persons from a private corporation relative to the possible location of that corporation in the county. While KRS 61.810(1)(g) cannot be invoked to justify such meetings, that statute could probably have been utilized at a properly called regular or special meeting of the fiscal court as a body to discuss the issue of a specific corporate entity locating in the county.
Either William D. Boarman or the Ohio County Fiscal Court or both of them may challenge this decision by initiating action in the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.
Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceedings under the Open Meetings Act.
Thomas R. Emerson
Assistant Attorney General
Copies of this decision
have been mailed to:
William D. Boarman
125 Three Acre Woods Lane
Hartford, Kentucky 42437
Hon. Dudley Cooper
Ohio County Judge/Executive
301 South Main Street
P.O. Box 146
Hartford, Kentucky 42437