TO BE PUBLISHED 

 

 

 

 

 

 

 

 

 

 

94-OMD-23

 

March 1, 1994

 

 

 

 

In Re: Mark R. Chellgren/Representative Jody Richards

 

 

OPEN MEETINGS DECISION

 

This matter comes to the Attorney General as an appeal by Mark R. Chellgren of the Associated Press concerning a response he received from Jody Richards, Chair, House Majority Caucus, relative to a complaint filed under the Kentucky Open Meetings Act (KRS 61.805 to KRS 61.850).

 

In a letter dated January 6, 1994, Mr. Chellgren asked Mr. Richards to be permitted to attend meetings of the House Democratic Caucus.

 

Mr. Chellgren maintains that the House Democratic Caucus was officially recognized as a separate entity by the Legislative Research Commission and the General Assembly by action of the Legislative Research Commission in 1993. He states that the House Democratic Caucus, along with various regional caucuses, were given official sanction and recognition in order to comply with the 1993 Legislative Ethics Law. Mr. Chellgren concludes that the House Democratic Caucus is an official body of the General Assembly subject to the Open Meetings Act or, in the alternative, it involves an official meeting of the House because it consists of a majority of the members of the House.

 

In a letter dated January 7, 1994, Mr. Richards cited KRS 61.810(1)(i) to the effect that a meeting of the House Majority Caucus is exempt from the terms and provisions of the Open Meetings Act. While the House Majority Caucus has been recognized as a separate entity and is a committee of the General Assembly, Mr. Richards maintains that it is not a standing committee of the General Assembly and, thus, that it is exempt from the requirements of the Open Meetings Act.

 

In his letter of appeal to this office, Mr. Chellgren states that he disagrees with the determination that the House Democratic Caucus is exempt from the provisions of the Open Meetings Act. He maintains that it is a "distinction without a difference to maintain that the House Democratic Caucus is not a standing committee of the General Assembly."

 

This office has previously concluded that the Open Meetings Act applies to the Kentucky House of Representatives. See 93-OMD-63, copy enclosed, at page three. KRS 61.810(1) sets forth the statutorily recognized exceptions to open and public meetings; among those exceptions, as set forth in KRS 61.810(1)(i), are "Committees of the General Assembly other than standing committees."

 

Accordingly, if the House Democratic Caucus is a committee of the General Assembly, it is not subject to the provisions of the Open Meetings Act unless it is a standing committee. On the other hand, if the House Democratic Caucus is not a committee of the General Assembly, then it is subject to the provisions of the Open Meetings Act.

 

It is our opinion that the House Democratic Caucus is not a committee of the General Assembly and, therefore, is subject to the provisions of the Open Meeting Act. We reach this conclusion based on our understanding that the House Democratic Caucus was created by the Legislative Research Commission and not by the General Assembly.

 

We do not believe that an entity created by the Legislative Research Committee can qualify as a committee of the General Assembly. See OAG 74-842, copy enclosed. As the Kentucky Supreme Court stated in Legislative Research Commission v. Brown, Ky., 664 S.W. 2d 907, 915-16 (1984):

 

The Kentucky General Assembly is not one of continuous session and a necessary corollary thereto is that it cannot legislate after it has adjourned sine die. A legislative body ceases to exist at the moment of its adjournment. Anderson v. Dunn, 19 U.S. (6 Wheaton) 204, 5 L.Ed. 242 (1821).

 

As we have concluded above, the General Assembly may not delegate its authority to legislate. It follows, therefore, that

 

given the inability to delegate said authority, the General Assembly may not bestow upon its agent, the LRC, nor can the LRC seize for itself, the power to legislate.

 

Because the Legislative Research Commission cannot exercise the authority of the General Assembly, it cannot establish a committee of the General Assembly. Therefore, because the House Democratic Caucus was established by the Legislative Research Commission, the House Democratic Caucus does not qualify as a committee of the General Assembly and is subject to the provisions of the Open Meetings Act. An entity created by the Legislative Research Commission is subject to the terms and provisions of the Open Meetings Act and its meetings, generally, are open and public meetings.

 

The General Assembly may, of course, decide to establish the House Democratic Caucus as a committee of the General Assembly. If that occurs, any decision regarding the applicability of the Open Meetings Act to that committee would depend on the nature of the committee formed by the General Assembly and on the specific circumstances surrounding any particular Open Meetings issue.

 

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. 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.

 

CHRIS GORMAN

ATTORNEY GENERAL

 

 

 

Thomas R. Emerson

Assistant Attorney General

(502) 573-7600

 

 

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Enclosures

 

Copies of this decision

have been mailed to:

 

Mr. Mark R. Chellgren

Correspondent

The Associated Press

The State Capitol

Frankfort, Kentucky 40601

 

Representative Jody Richards

Chair, House Majority Caucus

c/o Legislative Research Commission

State Capitol

Frankfort, Kentucky 40601