TO BE PUBLISHED 

94-OMD-50

March 30, 1994

In Re: A. C. Wilson, Jr./Barren County Fiscal Court

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by A. C. Wilson, Jr. concerning his letter of February 2, 1994, to the Barren County Fiscal Court Magistrates.

In his letter to the Barren County Fiscal Court Magistrates, Mr. Wilson maintains that they have been violating the Open Meetings Act. He states that the magistrates, in numbers representing at least a quorum, have been meeting in the "Magistrates Office," a single room on the second floor of the courthouse without notifying or allowing the public to attend. Mr. Wilson cited the definition of "meeting" and states that it extends to a subcommittee, ad hoc committee, advisory committee, councils, commissions, etc.

The Barren County Judge/Executive, in a letter to Mr. Wilson, dated February 16, 1994, advised that the magistrates were informed of Mr. Wilson's complaints concerning their alleged violations of the Open Meetings Act. He attached a copy of a "Notice" signed by the magistrates, dated February 16, 1994, stating that individual magistrates would be present in the office in the courthouse on the first and third Wednesday of each month between the hours of 8:00 a.m. and 9:00 a.m. and for one hour preceding any special meeting for which notice has been given. Each magistrate will be present for the purpose of examining claims presented for payment or reviewing documents or materials pertaining to county business. It was further stated that no business will be transacted and the public was invited to attend.

In his letter of appeal to the Attorney General, received February 17, 1994, Mr. Wilson requests a decision relative to the "Notice" given by the magistrates and whether it complies with the requirements of the Open Meetings Act. He also asks this office to consider whether a "casual gathering" requires a presiding officer and whether it requires that minutes be recorded and kept.

The duty of the Attorney General under the Open Meetings Act, as set forth in KRS 61.846(2), is to review the complaint and denial and issue a written decision which states whether the public agency violated the Open Meetings Act. Thus, we can only consider those issues and allegations which have been presented to the public agency. We cannot decide issues which are raised for the first time in the letter of appeal to the Attorney General's Office.

The questions of the necessity of a presiding officer and the keeping of minutes were not initially presented to the fiscal court and, therefore, cannot be resolved in this decision. While the matter of a presiding officer is not specifically addressed in the Open Meetings Act, we direct the attention of the parties to KRS 67.040(2) pertaining to the presiding officer at meetings of the fiscal court. The keeping of the minutes at a public meeting of a public agency is dealt with in KRS 61.835.

The fiscal court is a "public agency" (KRS 61.805(2)(c)) and thus is subject to the terms and provisions of the Open Meetings Act (KRS 61.805 to KRS 61.850).

A "meeting" is defined in KRS 61.805(1) as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." KRS 61.810(1) states that all 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 and open to the public, with some exceptions.

In OAG 78-411, copy enclosed, we said in part that if the fiscal court commissioners met in a casual gathering for informational purposes or in anticipation of or in conjunction with a regular or special meeting, the meeting should have been open and proper notice should have been given.

A gathering of fiscal court members at which public matters involving the county and the fiscal court were reviewed would be a public meeting. There are only two kinds of meetings--regular meetings and special meetings.

Regular meetings are held at specified times and places which are convenient to the public. Public agencies must provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that particular agency. The so-called "Notice" of the magistrates, although not an ordinance, order or bylaw, is sufficient in content to be a schedule of regular meetings. However, it should be enacted in the manner required by KRS 61.820.

Special meetings are dealt with by KRS 61.823. Notices for special meetings involve a written document, consisting of the date, time, and place of the special meeting and the agenda, delivered to the required parties. In addition to the delivery requirements of KRS 61.823(3) and (4)(a), there are also posting requirements (KRS 61.823(4)(b)). These requirements must be met each time for each called special meeting. There is no such thing as a proper advance notice of a special meeting to be called at some future time. The "Notice" of the magistrates is not in conformity with the statutory requirements.

The required written response of a public agency to a complaint received under the Open Meetings Act is set forth in KRS 61.846(1). The response in this situation is deficient relative to the time in which it should have been sent and in its failure to state which statute authorizes its actions and a brief explanation of how the statute or statutes apply.

It is, therefore, the decision of the Attorney General that the Barren County Fiscal Court has violated the provisions of the Open Meetings Act in that its response to the complaint was deficient and the so-called "Notice" of the magistrates does not conform to the provisions of KRS 61.820, concerning notice of regular meetings, or the provisions of KRS 61.823, pertaining to notice of special meetings.

The Barren County Fiscal Court 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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Enclosure

Copies of this decision

have been mailed to:

A. C. Wilson, Jr.

Cave County Newspapers, Inc.

135 East Main Street

Glasgow, Kentucky 42141

Hon. David A. Dickerson

Barren County Judge/Executive

Barren County Courthouse

Glasgow, Kentucky 42141

Ben Rogers, Esq.

Barren County Attorney

Barren County Courthouse

Glasgow, Kentucky 42141