NOT TO BE PUBLISHED

96-OMD-157

July 16, 1996

In re: Karl Bradley/Menifee County Fiscal Court

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by Karl Bradley in connection with his complaint against the Menifee County Fiscal Court.

In a letter to the County Judge/Executive, dated June 23, 1996, Mr. Bradley referred to a meeting of the fiscal court held on April 12, 1996 at which the County Judge/Executive presided. Mr. Bradley stated that no magistrates attended the meeting, a quorum did not exist, and the proceedings were not recorded. Mr. Bradley asked that the matters discussed at the April 12, 1996 meeting be reconsidered at a properly conducted future meeting of the fiscal court.

The letter of appeal to this office from Mr. Bradley, dated June 27, 1996 and received July 1, 1996, stated in part that he had not received a response from the Menifee County Judge/Executive.

On July 1, 1996 this office sent copies of a “Notification of Receipt of Open Meetings Appeal” to both Mr. Bradley and the Menifee County Judge/Executive. On July 8, 1996 this office received a letter and various documents, consisting of nine pages, from John A. Nefzger, Menifee County Attorney.

Mr. Nefzger stated that what transpired on April 12, 1996 was a statutorily required hearing at which the County Judge/Executive presided. The hearing , he said, did not have to be held as part of a fiscal court meeting attended by a quorum of the fiscal court, the County Judge/Executive received a “sense of the public” regarding the matter, no decisions were made or actions taken, the public hearing was duly advertised, and it was conducted in accordance with the requirements of the Department of Local Government.

This office has a precise and narrow function in connection with the interpretation and application of the Open Meetings Act. KRS 61.846(2) provides that when an appeal has been properly submitted the Attorney General shall review the complaint and denial and issue a written decision stating whether the agency violated the provisions of the Open Meetings Act.

In support of its position that a properly conducted hearing, rather than a fiscal court meeting, was held on April 12, 1996, the county has cited KRS 174.100 and KRS 42.455.

KRS 174.100 provides in part that before any unit of local government expends state-derived tax revenues on various road projects, it shall hold a hearing “to take the sense of the public with regard to the project.” Notice of the hearing must be given, any person may speak at the hearing with regard to any proposed project, and the unit of government holding the hearing is not bound by the testimony given but shall give due consideration to it.

KRS 42.455, a part of the statutory sections relative to the “Local Government Economic Assistance Program,” contains provisions requiring a public hearing pertaining to the expenditure of funds under that program. There is no requirement that such a public hearing be part of a fiscal court meeting or that a quorum of the fiscal court attend the public proceeding.

KRS 61.846(1) requires in part that public agencies, such as the county and the fiscal court, respond in writing within three business days after the receipt of the complaint to the person submitting the complaint. Failure to do so constitutes a violation of the Open Meetings Act.

Thus while the county violated the Open Meetings Act to the extent that it did not furnish a timely written response as mandated by KRS 61.846(1), the county's activities of April 12, 1996 did not violate the Open Meetings Act as the county was conducting a statutorily required public hearing pertaining to the expenditure of public funds for various public projects, not requiring the presence of a quorum of the fiscal court, rather than holding a public meeting of the fiscal court subject to the terms and provisions of the Open Meetings Act.

A party aggrieved by this decision may appeal it 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 proceeding under the Open Meetings Act.

A. B. CHANDLER III

ATTORNEY GENERAL

Thomas R. Emerson

Assistant Attorney General

sjj/796

Copies of this decision

have been submitted to:

Karl Bradley

8845 Leatherwood Road

Salt Lick, Kentucky 40371

John A. Nefzger

Menifee County Attorney

P.O. Box 56

Frenchburg, Kentucky 40322