TO BE PUBLISHED 

93-OMD-81

July 2, 1993

IN RE: Earl Martin McGuire, Esq./ Clifford B. Latta, Esq.

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by Earl Martin McGuire, Esq., Legal Counsel for the Floyd County School Administrators Association, concerning the response to his complaint received from Clifford B. Latta, Esq., Legal Counsel for the Floyd County Board of Education.

In a letter to the presiding officer of the Floyd County School Board, dated May 12, 1993, Mr. McGuire alleged that on March 25, 1993, March 27, 1993, March 30, 1993, and April 3, 1993, the Floyd County School Board violated the terms and provisions of the Kentucky Open Meetings Act when it went into closed or executive sessions to discuss matters which should have been discussed in open and public sessions.

Mr. Latta responded to Mr. McGuire in a letter dated May 14, 1993, and maintained that the Floyd County School Board at all the times mentioned by Mr. McGuire fully complied with both the letter and the spirit of the Open Meetings Act. Mr. Latta stated that the Floyd County School Board properly invoked the exception to the Open Meetings Act during the course of the meetings in question.

Mr. McGuire submitted a letter of appeal to the Attorney General's Office which was received on June 11, 1993. He seeks a decision from this office relative to the validity of the executive sessions. His letter of appeal also contains the following requests:

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their costs, including reasonable attorney fees incurred in connection with this appeal and any subsequent legal action. In addition, each party is requesting they be awarded an amount not to exceed $100 for each instance in which the Board is found to have violated the Kentucky Open Meetings Law.

It has come to the attention of this office that on June 10, 1993, Mr. McGuire filed an action in the Floyd Circuit Court (Civil Action No. 93-CI-00359) alleging violations of the Open Meetings Act (improperly called executive sessions) and seeking, in part, the same relief requested in his appeal to this office.

The role of the Attorney General's Office in an appeal under the Open Meetings Act is rather limited. KRS 61.846(2) states in part as follows:

The Attorney General shall review the complaint and denial and shall issue within ten (10) days, excepting Saturdays, Sundays, and legal holidays, a written decision which states whether the agency violated the provisions of KRS 61.805 to 61.850.

Most of the relief requested by Mr. McGuire on behalf of his clients can only be granted by a circuit court. See KRS 61.848(1), (5), and (6).

While a person alleging a violation of the Open Meetings Act does not have to exhaust his remedies under KRS 61.846 before filing suit in a circuit court (see KRS 61.848(2)), it is the opinion of this office that a person cannot seek relief from this office under KRS 61.846 when the same and additional questions under the Kentucky Open Meetings Act are currently pending before a circuit court under KRS 61.848.

In OAG 88-78, copy enclosed, an opinion rendered under the Open Records Act but applicable here as this office now performs the same function under the Open Meetings Act as it has been performing since 1976 under the Open Records Act relative to deciding appeals, we said in part as follows:

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It is clear from KRS 61.882 that the legis- lature has vested the circuit courts with authority overriding that of the Attorney General in determining open records ques- tions. Under such statutory circumstance, it would be improper for this office to attempt to substantively determine an open records question, when the same question is before a circuit court.

Therefore, the Attorney General's Office will not at this time render a decision as to whether the Floyd County School Board properly invoked exceptions to the Open Meetings Act in regard to the four meetings in question since that same issue was presented to a circuit court before the appeal was presented to this office and the matter is now pending before that circuit court.

Either party to this appeal may challenge this decision by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.

CHRIS GORMAN

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

(502) 564-7600

sjj/834

Copies of this decision

have been mailed to:

Earl Martin McGuire, Esq.

54 Court Street

Prestonsburg, Kentucky 41653

Clifford B. Latta, Esq.

Eight North Arnold Avenue

P.O. Box 550

Prestonsburg, Kentucky 41653-0550