Danville City Commission violated the state Open Meetings Act in its decision to purchase the BISCO building, the state Attorney General ruled.
In response to an open meetings complaint filed by The Advocate-Messenger, Assistant Attorney General Amye L. Bensenhaver prepared a six-page decision in the newspaper’s favor. The decision, which also was sent to Danville City Attorney Stephen Dexter and Mayor Bernie Hunstad, was dated Friday and received Monday.
The summary of the decision, labeled 12-OMD-179 reads... “Danville City Commission violated KRS 61.815(1)(c) by taking final action on the purchase of real property in closed session and KRS 61.846(1) by failing to respond to open meetings complaint alleging this violation.”
The disputed action in an executive session took place July 23 during a City Commission meeting. There was no public vote regarding purchasing the building during open session that day.
It wasn’t until Aug. 13 that commissioners publicly approved the purchase of the BISCO building, a decision that has stirred some controversy, partially because Commissioner Ryan Montgomery’s father, Mike Montgomery, conducts business with the property’s now-former owner Mitchell Barnes of Lexington. On Aug. 13, commissioners said they had reached a “consensus” during the July 23 executive session that allowed City Manager Ron Scott to move forward with plans to hire a bidder and secure the property through auction.
However, a consensus is still a vote, according to the attorney general’s decision.
“In correspondence directed to the Attorney General after The Advocate-Messenger filed this appeal, the Commission denied that it took any votes or final action in the properly called closed session. The Commission summarized the content of the closed session discussion, indicating that ‘the Commissioners collectively stated to the City Manager that they could potentially approve of a purchase of the BISCO Building if the sale price was less than the appraised value’ and that there was ‘support from all’ for the City Manager to ‘hire a professional bidder as its agent … so as not to showcase that it was the City bidding.’ The Commission maintained it did not take final action on the purchase until the purchase was unanimously approved at its August 13 meeting. The July 23 discussion focused on ‘what dollar amount would be an acceptable purchase price and the manner in which it should be bid by an agent of the City.’”
City Attorney Stephen Dexter said during a telephone interview Monday that he disagreed with the attorney general’s “opinion.” He said that 12-OMD-179 was not a legally binding decision, but an opinion.
However, the language of the document as well as the statutes themselves, contradict Dexter’s assessment. According to the attorney general’s website: “The Attorney General issues legally binding decisions in disputes under the open records and open meetings laws. Proceedings before the Attorney General are governed by our administrative regulation.”
The website also links to the administrative regulation cited, which states as follows: “KRS 61.880 requires the Attorney General to issue legally binding decisions in disputes arising under the Open Records Law. KRS 61.846 requires the Attorney General to issue legally binding decisions in disputes arising under the Open Meetings Law. This administrative regulation is necessary in order to set forth the procedures to be used by the parties involved in such adjudications.”
Jeremy Rogers, an attorney with the Kentucky Press Association’s Freedom of Information hotline, also said an open meetings decision (OMD) is legally binding.
“On open meetings decisions, the Attorney General’s authority extends to create a legally binding force and effect of law,” Rogers said. “The decision is indeed law unless one of the parties successfully appeals it through the Circuit Court.”
However, the attorney general cannot compel Danville or any other entity to change its past course of action or pay fines.
“Only a judge can award sanctions, fines or order another course of action,” Rogers said.
Dexter said he had forwarded the document to City Commissioners and expected it to be a point of discussion at the next meeting.
Hunstad said this morning he was “disappointed” with the attorney general’s response and declined further comment.
Former city manager and Danville resident Paul Stansbury, one of those who have recently spoken out against how the BISCO purchase was handled, said this morning he was pleased.
"Anyone who has basic familiarity with Kentucky's Open Meetings Law should have immediately and clearly recognized the action by the Danville City Commission to reach consensus on the purchase of the BISCO in executive session was clearly prohibited,” Stansbury said. “There are times when executive session is justified, but the commission must resist the temptation to hide behind the law simply because it doesn't want the public to know what it’s up to."
