Legality Of Some Actions Taken During Recent Board Meeting Questioned
Diamond Point Welcome Center is closed and an employee with the Harrodsburg-Mercer County Tourist Commission has been laid-off because of coronavirus concerns. However, there are questions about the legality of steps recently taken by members of the Tourist Commission board of directors.
Last week, city commissioners voted to allow local restaurants—which have been forced to shut down their dining areas and close because of concerns about coronavirus—to not pay their restaurant taxes for March and April. The resolution also bars the Tourist Commission from assessing late penalties for taxes due for February.
According to the agenda sent to the Harrodsburg Herald, the city resolution and the Tourist Commission’s budget was what the board of directors was set to discuss at a special-called meeting held on Thursday, March 26.
However, board member Tim Kazimer said the meeting was a rescheduled regular meeting to make up for the one which was cancelled the week before. Kazimer moved to disassociate with attorney Luke Morgan of McBrayer PLLC in Lexington, and hire Harrodsburg attorney Norrie Clevenger Currens as the Tourist Commission’s new legal council. This motion passed unanimously.
At the meeting, it was pointed out that, under Kentucky law, the board was supposed to only discuss items on the agenda. Kazimer called Currens, who noted that the Tourist Commission had only given a 24-hour notice of the meeting, not a 48-hour notice as required under the group’s bylaws. She said someone could move to make it a regular meeting and asked if any of the members present objected. The other board members–Tia Taylor, Mike Inman and Bob Gigliotti, who attended the meeting remotely—voted unanimously to consider the meeting a regular meeting, then voted to go into executive session.
When they came out of executive session, the board voted unanimously to adopt personnel actions, which they declined to reveal to the Harrodsburg Herald. Instead, Kazimer called Currens, who drove to the office and said that under state law and Tourist Commission bylaws, they had only taken an interim action and nothing had to be disclosed.
“They all decided to consider it a general meeting,” Currens said. “There was no objection. So it was a general meeting.”
Before going into executive session, the board voted to shut down all nondiscretionary spending by the Tourist Commission with the exception of salaries, utilities, insurance, the wayfinding sign project and the repairs already underway at Diamond Point.
Inman moved to refund the resturant taxes subject to a legal opinion from the state tourism council or the attorney general. This too passed unanimously.
While Chairwoman Kathryn Tuggle attended Thursday’s meeting, two members—JoEtta Wickliffe and Chuck Dedman—did not. Executive Director Karen Hackett missed the meeting because of an illness. The Harrodsburg Herald reached out to her for comment but received no answer.
On Tuesday, Kazimer defended the board’s actions. He said the Tourist Commission has not had an attorney who had been approved and voted on by the board.
“Luke Morgan was called upon twice since I’ve been on this board that I know of but never at the blessing or knowledge of the board,” Kazimer said via email. “I moved to transparently establish a board-approved, local attorney to represent the commission and to dissociate from non-approved council.”
He said Carolyn Crump, who served the Tourist Commission’s office manager, was laid-off and Diamond Point was closed because of the coronavirus and the locks were changed because they were not sure who has keys to the building and garage.
Kazimer insisted the meeting was held in accordance with the commission’s bylaws and state law.
“Under KRS 61.810(f) we are entitled to discuss personnel issues in closed session,” he said. “No final action was taken in closed session.”
Because of concerns about apparent violations of the Kentucky Open Records Act, the Harrodsburg Herald reached out to the Kentucky Press Association for a legal opinion.
“The Commission appears to have violated the Open Meetings laws in several serious ways,” said Michael Abate of Kaplan Johnson Abate and Bird LLP, who serves as legal counsel to the Kentucky Press Association and regularly handles Open Records and Open Meetings disputes. “First, the Board clearly made a personnel decision in closed session—which is expressly prohibited by the Open Records law—and then tried to ‘ratify’ that with a cursory public vote.”
That is not legal, Abate said.
“The Kentucky Supreme Court has already rejected that tactic—even in circumstances where an agency doesn’t try to hide the substance of its decision, and the Commission bizarrely—and inappropriately—did here,” he said.
Moreover, Abate said, “the commission also violated the law by ‘reclassifying’ its special-called meeting as a ‘regular’ meeting on the fly. The law requires agencies to publish a schedule in advance of the time and place for all regular meetings. Failure to follow that law matters because, at a special called meeting, an agency can only discuss those things actually on the pre-published agenda for that meeting.”
Abate said the board cannot make an end-run around that requirement by simply pretending the special meeting was a regular one to tackle other topics it wished were on the agenda.
The bottom line, according to Abate, is that “an agency cannot hide from the public the issues it plans to address or those that it just voted on.”
“The whole point of the Open Meetings law is that the public is entitled to see what its agencies are doing in its name,” Abate said. “The Commission is playing games to try—albeit unsuccessfully—to comply with the letter of the law, while blatantly ignoring its spirit.”
Mayor Art Freeman disagrees with this assessment.
“One point that must be made, and my opinion, is that the commission directors who you insist violated the open meetings law are all fairly new directors who are trying to right a wrong,” Freeman said. “And you need to point out that what they did was at the advice of council.”
The mayor said the board’s new attorney, Norrie Clevenger Currens, would conduct an investigation into the Tourist Commission’s finances and personnel practices.
The Commission collects taxes from local restaurants and lodging establishments. Half of that goes to the City of Harrodsburg, which uses the money to promote tourism. The rest is supposed to be used by the Tourist Commission to market the area and to provide sponsorships and support to local tourism-related events.
Over the past five years, the Tourist Commission purchased Diamond Point Welcome Center for $251,000, pledged $100,000 to repair the fort walls at Old Fort Harrod State and has overseen the installation of a series of wayfinding signs, a project which has taken six years and cost nearly $76,000.
But the Tourist Commission has also come under fire for holding too much money in reserve. In 2018, Freeman, who was not then Harrodsburg’s mayor, went before the city commission to complain about how much money he said the Tourist Commission was holding.
“It appears to be unethical, immoral and illegal,” Freeman said at the time. He would announce his candidacy for mayor later that year.
According to the Tourist Commission’s 2018 audit, which is the most recent available at the Kentucky Department of Local Goverment’s website, the agency took in $782,548 that year, with the majority of that—$638,912—coming from the restaurant tax.
Of that, $320,185 was paid to the City of Harrodsburg’s tourism development fund. According to the audit, total disbursements amounted to $458,280. The Tourism Commission spent $166,012 on advertising, $129,321 on salaries and benefits and the rest on sponsorships, supplies and capital outlay.
The next regular meeting of the Harrodsburg-Mercer County Tourist Commission is scheduled for Wednesday, April 15, at 8 a.m.