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Webster County Board of Education v. Valerie Franklin (Newell

February 8, 2013

WEBSTER COUNTY BOARD OF EDUCATION
APPELLANT
v.
VALERIE FRANKLIN (NEWELL), COUNTY CLERK OF WEBSTER COUNTY, KENTUCKY
APPELLEE



APPEAL FROM WEBSTER CIRCUIT COURT HONORABLE C. RENE WILLIAMS, JUDGE ACTION NO. 11-CI-00344

The opinion of the court was delivered by: Clayton, Judge

RENDERED: FEBRUARY 8, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES.

The Webster County Board of Education (hereinafter "the Board") appeals from the Webster Circuit Court's decision granting the Webster County Clerk's motion to dismiss the petition of the Board, which had contested the validity of a recall petition for an ad valorem property tax. The Board also appeals the trial court's denial of its later motion to alter, amend or make additional findings. Because we find no error with the trial court's dismissal, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2011, the Board acted to raise the personal property tax rate and included, pursuant to Kentucky Revised Statutes (KRS) 132.0225, a new levy of six (6) cents (which is sometimes referred to as the "nickel tax") and is subject to recall under the provisions of KRS 132.017. On September 6, 2011, a group of Webster County citizens filed a document, entitled "Affidavit of Petition Committee," with Valerie Franklin (Newell), the clerk for the Webster County Clerk's Office, seeking to recall the portion of the tax levied by the Board. On October 31, 2011, Franklin (hereinafter "the Webster County Clerk") ascertained that the affidavit complied with KRS 132.017, the statute governing recall proceedings.

On November 3, 2011, the Board held a special meeting. The minutes of this meeting reflect that the Board conducted a closed session pursuant to KRS 61.810(1)(c) to discuss potential litigation regarding the six-cent tax levy. The minutes stated that, upon returning to open session, the Board took the following action:

BOARD TO PURSUE THE CHALLENGE OF PETITION ON RECALLABLE NICKEL TAX The Webster County School Board directed legal counsel to pursue a challenge to the petition to recall the nickel tax.

The minutes, however, have no motion, no second of motion, or vote by the members of the Board during the open session to support the initiation of this action. Nonetheless, at the next regular Board meeting on December 5, 2011, the minutes of this special meeting were approved.

On November 9, 2011, the Board filed its action challenging the validity of the recall effort. At that time, the trial court responded to the petition by establishing a briefing schedule for the parties, which was to be followed by oral arguments. But, on December 14, 2011, the Webster County Clerk filed a motion to dismiss the petition. The Webster County Clerk had discovered, after making a request under the Open Records Act, that the Board's action was not properly before the trial court. According to the Webster County Clerk, as a public agency, the Board violated KRS 61.810, KRS 61.805(3), and the Open Meetings Act. In essence, the Webster County Clerk claimed that the Board did not validly authorize its counsel to file the petition because, according to the minutes, the Board did not take a vote or even have a motion that authorized its counsel to file the action.

During the pendency of the motion to dismiss, the Board, at its next regularly scheduled meeting on January 9, 2012, unanimously passed an order that elucidated the following: the Board at the November meeting had reached a consensus to authorize the Board's attorney to file the action, ratified the action of the Board's attorney in filing the action and, finally, required the Board's attorney to file the action nunc pro tunc to November 3, 2011.

Following the filing of briefs and supplemental memoranda and hearings, the trial court on March 16, 2012, granted the Webster County Clerk's motion to dismiss. Then, on April 6, 2012, the trial court denied the Board's motion to alter, amend or make ...


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