Wednesday, March 29, 2000
Kenton Co. OKs opinion on meetings
BY CINDY SCHROEDER
The Cincinnati Enquirer
CRESCENT SPRINGS — Kenton Fiscal Court agreed Tuesday not to contest an attorney general's opinion that prohibits “less than quorum meetings” to avoid the notification requirements of Kentucky's Open Meetings Act.
In exchange, Terry Whittaker, the Elsmere woman who sought the opinion, will agree that discussions to educate individual members of a public body on an issue — not to reach a collective decision — are allowed under Kentucky law.
The fiscal court also will dismiss its appeal, which named Ms. Whittaker as the defendant, and will bear all court costs associated with the case.
The agreed order will be presented today to Kenton Circuit Judge Patricia Summe, who must approve it, before it is official.
Ms. Whittaker said she was prompted to seek the attorney general's opinion, after Kenton Judge-executive Dick Murgatroyd announced at a Dec. 6 press conference that he had spoken to county commissioners individually, and collectively, they had agreed to terminate the county's option on a potential jail site in Elsmere.
That statement, if true, was a clear violation of Kentucky's Open Meetings Act, Ms. Whittaker said.
While the county's subsequent release of information has since “clouded the issue” as to whether the fiscal court acted illegally, Ms. Whittaker said she hopes her case sends the message that “if (a government body) makes decisions, it must make them publicly.”
Kentucky's Open Meetings Act requires public bodies to discuss and approve issues in public.
Issues such as proposed or pending litigation, specific personnel issues, and the purchase or sale of property when publicity could affect its value, can be discussed — but not decided — behind closed doors.
In resolving the dispute, Kenton County Attorney Garry Edmondson said Ms. Whittaker agreed with the county's main contention that assistant attorney general Amye Bensenhaver “went too far” when she stated in her opinion that all less than quorum meetings are illegal, not just those that result in a collective decision.
Kenton County officials had argued that that provision would have had a chilling effect on every Kentucky public agency, because two members of a public body could not talk, without the presumption that they were illegally discussing public business.
Unless they're successfully appealed, attorney general opinions on open meetings and open records issues have the force of law.
Ms. Whittaker's attorneys described the tentative agreement as a “win-win situation” for all concerned.
“Think of the tax dollars that would have been spent on the (county's) appeal,” said Chris Mehling, who joined lawyer Phil Taliaferro in representing Ms. Whittaker.
“It's also been an educational process for the public and office-holders on what they can and cannot do. And it allows public officials to confer to educate themselves on an issue.”
At the Dec. 6 press conference, Mr. Murgatroyd passed out a press release that said: “I have spoken with each of the commissioners individually concerning this issue, and collectively we agree that this is the appropriate action to take at this time.”
Commissioners Adam Koenig and Barb Black also read statements at the press conference, in support of Mr. Murgatroyd's recommendation to re- open the jail-site selection process.
After Ms. Whittaker sought the attorney general's opinion, Mr. Edmondson told the press that Mr. Murgatroyd misspoke.
Mr. Edmondson said that Deputy judge-executive Scott Kimmich had called commissioners to give them new information on the costs of the Elsmere site — not to seek a consensus.
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