GDT complaint: Fiscal court violated open meetings law

GLASGOW – At the conclusion of the Oct. 2 special Barren County Fiscal Court meeting, the Glasgow Daily Times hand-delivered to the judge-executive a letter alleging that the county government body violated the Kentucky Open Meetings Act at its Sept. 3 meeting. A copy was also provided to the county attorney.

Through the county attorney, Judge-Executive Micheal Hale on Wednesday evening acknowledged an "unintentional violation."

According to that same law, a public agency “shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period, of its decision. … The response shall be issued by the presiding officer, or under his authority, and shall constitute final agency action.”

As of 6 p.m. Wednesday, no response had been received, but after the Daily Times made inquiries as to whether one had been mailed by Monday, a letter was emailed to the newspaper later Wednesday evening.

During the Sept. 3 meeting, which was also a special-called meeting, the fiscal court went into a closed session of approximately an hour, citing three exceptions to the Open Meetings Act as the reasons for the closed session. They were 61.810(1)(b), (c) and (f), which deal with property, litigation and personnel, respectively.

Specifically, subparagraph (f) allows “[d]iscussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested,” to be discussed in a closed session.

The statute also specifies, however, that “[t]his exception shall not be interpreted to permit discussion of general personnel matters in secret.”

When the fiscal court re-emerged in open session, a motion was made, seconded and unanimously approved, with all members present, “to adopt ordinance No. 631 and 632.” There was no other explanation or discussion during the meeting about what these ordinances were. The meeting was subsequently adjourned and then Hale explained to members of the media his intent with these roles.

The Daily Times asserted in its complaint letter that the creation of two new positions and job descriptions thereof would be considered a general personnel matter that should be discussed in and voted upon in an open meeting.

“You stated after the meeting that you had someone in mind for the roles. Who you had in mind, qualifications of that person, etc., could certainly fall within the exception, but not the overall plan to create new positions, job descriptions, etc.,” the complaint letter states. “Furthermore, as this was a special-called meeting, taking the vote on the positions/job descriptions in the absence from the agenda of anything about these creates an additional violation ... as it should have been a matter for the open-session agenda in the first place and not just an action stemming from the closed session.”

KRS 61.846, which deals with enforcement of the act, requires the newspaper to suggest remedies to the violation. The Daily Times requested that, if the person taking on those roles had not actually started them yet, the vote be nullified and redone. As the complaint was not meant to cause an adverse effect to the employee, the newspaper said it was not requesting that be done if she had started the new roles.

“Regardless of whether the above possible remedy occurs,” the complaint letter states, “two other things should be:

“1) You, as presiding officer of the fiscal court, should make a public statement during an open, televised session of the Barren County Fiscal Court acknowledging these violations and apologizing for them.

“2) The portion of the discussion that took place in closed session regarding these job-role creations and descriptions – aside from any discussion about any specific person who was a potential appointment – should be repeated to the best of your and the other fiscal court members' recollections during the next televised fiscal court meeting in an open session for the public to be able to hear.”

If the allegation is denied or no response is provided, the next enforcement step would be for the newspaper to request a review of the case from the Kentucky Office of the Attorney General.

The emailed response letter was from County Attorney Kathryn Thomas. It states:

“In response to the Complaint you filed with County Judge Executive Hale, he acknowledges an unintentional violation of the Open Meetings Act. As outlined in your Complaint, fiscal court met in closed session to discuss matters of personnel. While some of that discussion was in fact protected communication falling under the umbrella of closed session exceptions, some of the discussion should have been addressed in open session. Judge Hale will address the violation, again, the unintentional violation, at the next monthly meeting.

“Judge Hale, on behalf of all county operations, values transparent government. We appreciate you bringing this matter to our attention.

“I realize this response is untimely due to the deadline having been Monday, October 7th. Please accept my apologies, personally, for the delay.”

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