RENDERED: SEPTEMBER 11, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-1040-MR
MARK CHRISTOPHER APPELLANT
APPEAL FROM GRANT CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, SPECIAL JUDGE1 ACTION NO. 25-CI-00179
CITY OF WILLIAMSTOWN, KENTUCKY; MAYOR DAVID HENSON; CITY COUNCIL OF THE CITY OF WILLIAMSTOWN, KENTUCKY, AND ALL INDIVIDUAL COUNCIL MEMBERS; DAVID HENSON, IN HIS CAPACITY AS COUNCIL MEMBER; GINA SMITH; JAYSON PAYNE; JOHN COLEMAN; KIM CRUPPER; AND RONNIE MAINES APPELLEES
OPINION
AFFIRMING
** ** ** ** **
1 The circuit judge of the Grant Circuit Court recused from hearing this case. Judge Schrand of the 54th Judicial Circuit (composed of neighboring Boone and Gallatin counties) is the Chief Regional Administrative Judge for the region including Grant County and was assigned to preside over this case.
BEFORE: COMBS, EASTON, AND L. JONES, JUDGES. EASTON, JUDGE: This appeal challenges the Grant Circuit Court’s order affirming the decision of Appellee City Council (Council) of the City of Williamstown (City) to remove Appellant Mark Christopher as the Mayor of the City. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND In 2022, Christopher was elected2 Mayor of the City. His term began on January 1, 2023, and would have expired on December 31, 2026. When Christopher took office, Vivian Link (Link) was the City Clerk. Link and Christopher worked together successfully until her retirement in June of 2024. The results of an audit for the fiscal year when Link retired indicated no financial problems for the City. All reports and Council meeting minutes were current when Link left.
After Link’s retirement, Christopher appointed Alex Cummins (Cummins) to the City Clerk position with the approval of Council. Cummins had been hired as a deputy clerk several months prior to this promotion. As Mayor, Christopher was Cummins’s supervisor. Cummins had limited clerk experience and had difficulty adjusting to her tasks. Christopher was made aware by Council
2 According to the official returns with the State Board of Elections, Christopher was elected by a margin of four votes in a close, three-way race with the vote totals at 367, 363, and 342.
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and other City employees that Cummins was behind in her duties. He spoke to her about her failure to keep up with the work but extended grace for these deficiencies because she was new to the position. Unfortunately, more than mere inexperience came to light.
From July of 2024 until Cummins’s resignation in February of 2025, the City’s financial accounting records were largely neglected. Cummins failed to make necessary entries in the City’s electronic budget tracker system. Checks drawn on City accounts were returned for insufficient funds. Deposits were not recorded. Payroll accounting entries were not made. Purchase orders were not paid. Minutes of the Council meetings were not timely prepared. Financial reports were late.
Even worse, Cummins paid overtime compensation to herself and to the City’s Fire Chief. But neither Cummins nor the Fire Chief was entitled to overtime pay because they were employees exempt from that benefit. It was later revealed that Cummins and the Fire Chief were having an affair. In addition, Cummins also gave herself a $3.00-per-hour raise. And Christopher, as Mayor and supervisor of the City Clerk, approved and signed all executive orders authorizing these improper payments.
By early 2025, Christopher learned about the bank account overdrafts and discussed the problem with the bank manager and with Council. Then, after
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learning about the affair with the Fire Chief, Christopher gave Cummins the option of either resigning or being fired. She resigned on February 19, 2025.
Link then returned to work in the City Clerk’s office to help clean up the budgetary issues. Assistant Clerk Lisa Clifton (Clifton) was appointed as the Interim City Clerk. It was during this time when Link and Clifton were trying to catch up with accounting and reporting duties that the full extent of Cummins’s misconduct was discovered.
While the City was experiencing these financial problems, members of Council began complaining to other City employees about the lack of information they received concerning the City’s finances. Council members were not receiving financial reports, presumably because Cummins had not been logging entries in the budget tracker system used to generate such reports. And Council was accustomed to receiving monthly financial reports and minutes during Link’s tenure. Council was also aware of individual reports that the City’s bills were not being paid on time and that checks had been returned for insufficient funds.
As a result, tension developed between Christopher and Council.
Chistopher would later testify he felt Council, the legislative body, was trying to usurp his authority as the City’s executive. The depth of the tension was revealed in a text exchange between Christopher and Cummins. When asked how Cummins should respond to Council’s inquiries, Christopher responded with a vulgar and
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profanity-laced diatribe, essentially telling Cummins not to respond to inquiries and to direct questions to him. If the Council members wanted information, Christopher said that they could just file open records requests.
As a result of these problems, Council held a special meeting on March 18, 2025. Council went into closed session after directing Christopher to leave. Members of Council then consulted with independent legal counsel (which Christopher complained they had no right to do). Council also held a special meeting on April 1, 2025, when it passed the Resolution charging Christopher with willful neglect pursuant to KRS3 83A.040(9) and authorizing the special meeting for a removal hearing on April 21, 2025.
Christopher promptly filed suit in the Grant Circuit Court (Action No.
25-CI-00127) for injunctive relief to set aside these preliminary actions, arguing various violations of the statutes governing procedure for conducting special meetings and passing resolutions. On the day of the removal hearing, the circuit court denied injunctive relief.
The removal hearing on April 21 was open to the public and held at the Grant County Courthouse with retired Circuit Judge Stephen Bates4 presiding.
3 Kentucky Revised Statutes.
4 Judge Bates began his service as a district judge for the 15th judicial district (composed of Grant, Owen, and Carroll counties) in 1986. He went on to serve as a circuit judge for the same counties from 1999 until his retirement in 2015.
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Written notice of the meeting was posted on April 18, 2025, in the Grant County Justice Center, the Williamstown City Building, and on the City’s social media platforms. But the notice was not posted in the Grant County Courthouse.
The removal hearing addressed the April 1st charging document, which alleged Christopher had acted with willful neglect in the performance of his duties when (1) he refused to provide Council with information about financial obligations and problems encountered by the City, and (2) when he permitted overtime payments to be made to persons ineligible for overtime payments, and did so without consulting or informing Council.5 A third allegation, that Christopher failed to provide minutes from Council meetings to the public, was removed from consideration at the hearing because that allegation had not been listed in the April 1st Resolution authorizing the hearing.
Christopher, Link, and Clifton testified at the hearing. A review of the video recording indicates the public hearing was well attended and included media representatives. After the conclusion of testimony and arguments of counsel, the members of Council went into a closed session to deliberate the charges. Significantly, Christopher did not object at that time. No one else objected. The Council deliberated for nearly two hours. They ultimately found against Christopher on both counts of willful neglect and ultimately voted to
5 Trial Record (TR) at 84 and 144.
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remove Christopher as Mayor. They returned with a signed Resolution promulgated in the closed session to remove Christopher as Mayor.
The Resolution was delivered to Judge Bates, and he read it into the record. Only when the closed deliberations did not go as he had hoped did Christopher object to the closed deliberations, arguing that Council’s action should have been taken in public and not behind closed doors. Judge Bates then polled each member of Council in public to affirm their decision. Christopher objected again, arguing the action taken behind closed doors could not be ratified by simply restating Council’s decision in the open. The objections were noted for the record, and the meeting was adjourned without further action.
Christopher then exercised his statutory right to appeal his removal by filing this second action in the circuit court. Christopher filed an Emergency Motion for Injunctive Relief pursuant to CR6 65 et seq., and To Void Illegal Actions of the Williamstown Kentucky City Council Members pursuant to KRS 61.848 et seq. Christopher also filed a Motion for Order Setting Aside the Illegal Findings and/or Order from the April 21, 2025, Removal Hearing. He sought attorney’s fees and court costs pursuant to KRS 61.848(6) for the Council’s alleged violations of KRS 61.823.
6 Kentucky Rules of Civil Procedure.
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Christopher served subpoenas on two members of Council to testify at a hearing on his motions, which Council challenged. The circuit court did not receive additional testimony from the Council members. A transcription of the April 21st hearing was created, and both the video record and transcript were submitted into evidence for the circuit court’s review.
The circuit court conducted a hearing on July 7, 2025, and ultimately affirmed Christopher’s removal. In a well-reasoned opinion, the circuit court reviewed each of Christopher’s many challenges, finding substantial compliance with Kentucky’s Open Meetings Act, KRS 61.848(5), and sufficient evidence to support the removal charges. The circuit court did not void the Council’s decision. This timely appeal followed.
BRIEFING FAILURES IMPACT OUR REVIEW The Kentucky Rules of Appellate Procedure govern briefs filed with this Court. RAP7 32(A)(4) mandates that an appellant’s brief “shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Christopher’s appellant brief does not comply with this rule. In his first argument about the closed session issue, Christopher does repeatedly refer to the video record of the Council’s public hearing. In the later arguments, references to the
7 Kentucky Rules of Appellate Procedure.
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record trail off to nothing. But no actual preservation statement is made as directed by the rule.
On the other hand, Council failed to file a timely appellee brief. This Court denied a motion to allow a late filing of this brief. A motion to reconsider that denial has been “passed” to this merits panel.
Then, even though the appellee brief had not yet been allowed, Christopher filed a reply brief. This brief was also non-compliant. It was too long and did not contain a word count certification in violation of RAP 31(G)(1) and (2)(b).
So, before we get to the merits of the case, we must decide what to do about Christopher’s failure to properly note preservation, rule on Council’s reconsideration motion, and, if an appellee brief is allowed, what to do about the non-compliant reply brief. Then we can determine the parameters of our review.
Instead of striking the appellant’s brief or dismissing the appeal as permitted by RAP 10(B)(3) or (5), we may consider other options. RAP 10(B)(6). We have a specific lesser option when preservation is not properly made. We may review for palpable errors and reverse if manifest injustice is shown. CR 61.02. We note that Christopher argues palpable error by the circuit court throughout his brief which would be consistent with a request for such a review in the absence of preservation.
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As our following analysis will reveal, our decision on this question of standard of review resulting from the appellant brief is somewhat academic. As we will explain, we find no error, palpable or otherwise, to justify reversal. Certainly, no manifest injustice has occurred.
As to Council’s failure to file an appellee brief, we can sympathize with the situation presented for its attorney. Basically, the attorney noted the wrong date on his calendar for the due date of the brief. He says that has never happened to him in decades of practice. From a search for appellate filings by this attorney, we have no basis to dispute this. But as the order which denied the motion originally noted, the Kentucky Supreme Court has held that such a mistake is not the neglect which the rule allows as a basis for a late brief. St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 731 (Ky. 2014). We deny the pending Motion for Reconsideration to allow this late brief and will do so by a separate order to be entered with this Opinion.
We have several options when an appellee brief is not filed. Under RAP 31(H)(3) we “may: (a) accept the appellant’s statement of the facts and issues as correct; (b) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (c) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.” As the word “may” indicates, any such action is within our discretion.
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The RAPs have been in effect now for a few years. Common failures under the applicable rules prior to the RAPs continue. We grow weary of the frequent non-compliance with them. Yet we see the importance of the issues presented by this case. An elected official was removed from office, and the public’s right to know what its government is doing has been implicated.
Also, appellate judges are to analyze the applicable law without being limited to a “spoon feeding” of it by the contents of the briefs. We have carefully reviewed the entire record regardless of the problems with the briefs. We can ascertain Council’s arguments from its successful argument to the circuit court. We have analyzed the applicable law. As we have indicated previously, we find no error to justify reversal. Basically, Christopher’s brief alone, when examined with the record, does not reasonably appear to justify reversal.
The absence of an appellee brief renders moot the need to address the non-compliant reply brief further. We will proceed with our review.
STANDARD OF REVIEW
“Open Meetings Act determinations are reviewed by this Court de novo.” Webster County Bd. of Educ. v. Franklin, 392 S.W.3d 431, 434-35 (Ky. App. 2013) (a case relied upon by Christopher which is distinguishable because it does not relate to the process of removing a mayor from office). Similarly, we review de novo whether the facts supported by substantial evidence are sufficient
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to meet the statutory, legal requirement of “willful neglect” to justify removal of a mayor.
If certain violations of the Open Meetings Act (OMA) have been shown, the circuit court must decide whether to void the action taken by the public body. “Whether such formal action should be voided is the plaintiff’s burden to prove through a showing of prejudice and equity.” Bradshaw v. Capital Community Economic/Industrial Development Authority, 727 S.W.3d 684, 702 (Ky. App. 2025). We review a voiding decision for an abuse of discretion. Id. “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
ANALYSIS
Christopher raises nine issues. We will address the issues in the order they were presented in Christopher’s brief, although this was not necessarily the order in which the issues arose as the events unfolded.
Christopher’s first three challenges concern whether it was proper for Council to adjourn into an “executive” or closed, non-public session to discuss and decide his removal as Mayor. For consistency, we will refer to the non-public session as a “closed” session, which is the accepted terminology in the OMA itself. Christopher also contends that Council violated the OMA when it adjourned into a
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closed session without a motion or vote to go into such a session. The Council also came out of the closed session to resume the public hearing without a motion or vote to return to an open session. KRS 61.815(1)(a) and (b). Christopher also argues Council violated KRS 61.815(1)(c) when it promulgated a Resolution, voted on the Resolution, and signed the Resolution removing him from office while in the “illegal” closed session. We reject each of these contentions as a basis for reversal.
Council removed Christopher from office pursuant to KRS 83A.040(9), a specific statute outside of the OMA, which controls the removal of elected officers. Our duty is to harmonize statutes. See Osborne v. Keeney, 399 S.W.3d 1, 22 (Ky. 2012). We are called upon to harmonize KRS 83A.040(9) with the OMA. KRS 83A.040(9) provides, in pertinent part:
[A]ny elected officer, in case of misconduct, incapacity, or willful neglect in the performance of the duties of his or her office, may be removed from office by a unanimous vote of the members of the legislative body exclusive of any member to be removed, who shall not vote in the deliberation of his or her removal. No elected officer shall be removed without having been given the right to a full public hearing.
(Emphasis added.)
Note the difference between hearing and deliberation. Christopher
was given a full public hearing on April 21, 2025. After hearing all testimony and arguments of counsel related to the alleged willful neglect of duties, Council
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discussed whether to remove Christopher from office while in a closed session and unanimously voted to remove him. Christopher insists Council should have discussed their decision to remove him in a public session pursuant to the OMA. We disagree.
The legislative intent of the OMA is found in KRS 61.800 and provides that the “formation of public policy is public business and shall not be conducted in secret.” (Emphasis added.) Exceptions are strictly construed. KRS 61.810 provides a list of limited exceptions under which a Kentucky public agency may conduct closed discussions or hearings. As related to this appeal, KRS 61.810(1)(f) provides as follows:
(1) All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following:
...
(f) Discussions 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. This exception shall not be interpreted to permit discussion of general personnel matters in secret.
(Emphasis added.)
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Christopher argues that, although he is clearly an elected officer subject to KRS 83A.040(9), he is neither an employee nor a “member” under KRS 61.810(1)(f), and thus it was improper for Council to discuss any action related to his removal in a closed session. We determine that a mayor is a member of a public agency and is a person contemplated by KRS 61.810(1)(f).
In Floyd County Board of Education v. Ratliff, 955 S.W.2d 921 (Ky.
1997), the Kentucky Supreme Court explained that the express purpose of the OMA is to maximize notice of public meetings and actions. The failure to comply with this law in conducting meetings of a public agency violates the public good. But our high Court also acknowledged there are certain narrowly defined exceptions, such as those found in KRS 61.810(1)(f). The courts of the Commonwealth must narrowly construe and apply these exceptions to avoid improper or unauthorized closed meetings. Id. at 923 (citations omitted).
Under the personnel exception described in Subsection (1)(f), a public agency may enter a closed session only for “discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.” KRS 61.810(1)(f) (emphasis added). These groups of individuals present the only personnel matters a public agency may discuss in closed sessions. Discussions on any other matters, such as general personnel matters, are expressly precluded.
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Kentucky courts have held that the personnel exception did not cover discussions of a school superintendent’s resignation because a voluntary resignation is not a “dismissal,” see Carter v. Smith, 366 S.W.3d 414, 421 (Ky. 2012) (a case upon which Christopher relies but which is also distinguishable). The personnel exception does cover discussions concerning whether to renew a contract to work as an employee, because the decision not to renew a contract was the equivalent of a dismissal. Bradshaw, 727 S.W.3d at 704.
And although not binding authority, we find persuasive the reasoning of our unpublished decision in Arnett v. City of Stanton, No. 2007-CA-000266- MR, 2008 WL 4091014, at *5-6 (Ky. App. Sep. 5, 2008). There, we held that any discussions Council members may have had among themselves involving the discipline of a mayor fell within the KRS 61.810(1)(f) exception to the OMA.
We also note here the different treatment of deliberations under the OMA, while again pointing out that the removal of a mayor is governed by a statute outside of the OMA. KRS 83A.040(9) includes the term “deliberation.” The exceptions of the OMA repeatedly exempt deliberative actions. KRS 61.810(1)(a), (b), and (j).
Even though the removal proceedings here were the actions of a public agency, the whole proceeding resembled a jury trial with the Council members as the finders of fact to decide guilt of charges submitted to them. We
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have constitutionally open courts for the public to watch the presentation of evidence, but we do not let the public or anyone else to go into the jury room. The decision is publicly reported with the chance to poll the jury for public assurance of their verdict. Likewise, here, Council had the right under KRS 83A.040(9) and KRS 61.810(1)(f) to privately discuss among themselves whether Christopher, who is a member of a public agency, should be disciplined by removal from office. There was no error in Council’s deliberating this issue among themselves in a closed session.
We also reject Christopher’s argument that the Council’s action should have been voided because Council did not make a formal motion or vote to move in and out of a closed session. KRS 61.815 sets forth requirements for conducting closed sessions and includes notice of the general nature of business to be discussed in them. KRS 61.815(1)(a). No matters may be discussed in such a session other than those publicly announced prior to convening the session. 61.815(1)(d). No final decision may be made in such a session. KRS 61.815(1)(c).
If we assume that the Council proceeding under KRS 83A.040(9)
should have gone through the formality of these OMA actions before deliberating, we find no reason to compel a voiding of the decision made. After all testimony was completed and counsel for both parties made closing arguments, the hearing
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officer informed Council they could meet privately to discuss the case. There was no contemporaneous objection, and there was no confusion as to the nature of the business to be discussed in this closed session. Everybody in the room understood what was happening, including the media present. This was sufficient notice to satisfy the purpose and spirit of KRS 61.815(1)(a) and (d).
Proper procedure still requires members of Council to make a formal motion and majority vote to move into a closed session, even once proper notice of the nature of closed session business has been provided. Final actions should be in public. In our effort to harmonize KRS 83A.040(9) and the OMA, we need to make clear what should have happened here. There should have been a motion to go into a closed session for the purpose of deliberation. Then the open session formally should have resumed. And it would have been best if a formal motion and public vote had been made in the public session to remove the Mayor.
KRS 61.815(1)(b) provides that closed sessions may be held only after a formal motion is made and carried by a majority vote in open, public session. KRS 61.815(1)(c) provides that no final action may be taken in a closed session. But strict compliance with these mandates will not void Council’s actions. Rather, KRS 61.848(5) specifically provides that any decision of a public agency without substantial compliance with KRS 61.815 shall be voidable.
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Christopher did not challenge Council’s private deliberations until he learned he had lost. There was no objection raised to Council’s failure to make a formal motion and vote to move from the open to closed session and back. Christopher’s real objection is to Council’s vote in the closed session. Yet that is how deliberation works. The hearing officer then polled all members of Council to affirm their unanimous decision in the special, public session. We conclude that in the context of a hearing under KRS 83A.040(9), any issue with the vote here does not require voiding the decision.
The deliberations properly occurred in a closed session as permitted by the KRS 61.810(1)(f) exception to the OMA. There were actual notice and clear understanding of the nature of the discussions in the closed session. While Council should have moved in and out of closed session and voted on removal by formal motions and votes, the affirmation of votes and recording of the final action of removal occurred in a public session. The purposes of the mandates in KRS 61.810, 61.815, and 61.823 were satisfied. Even if the actions were not in substantial compliance, voiding of the decision was not required. There was no abuse of discretion by the circuit court affirming the removal.
Christopher’s fourth challenge concerns whether Council violated KRS 83A.040(9) when it voted to remove him from office without substantial evidence that he committed acts of willful neglect. Evidence is substantial if “it
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has sufficient probative value to induce conviction in the minds of reasonable [people].” Blankenship v. Lloyd Blankenship Coal Co., Inc., 463 S.W.2d 62, 64 (Ky. 1970). We find substantial evidence to support Christopher’s removal.
Our review of both the written and electronic record in this case confirms the well-articulated reasoning of the circuit court. Christopher was required to supervise all departments of City government and the conduct of all City officers and employees under his jurisdiction. He failed to do so. Christopher failed to provide Council with information regarding misconduct in the handling of Williamstown’s finances. His argument that he only had to report annually ignores the reality of what was occurring, which compelled more frequent reporting.
In August 2024, Christopher noticed that budget tracker entries were not being made by Cummins or provided to Council. Cummins paid overtime to herself and the Fire Chief, with whom she was in a relationship. Cummins gave herself a $3.00-per-hour raise, and Christopher signed the executive orders authorizing both her improper increase in pay and the improper overtime payments.
While Christopher argues he was unaware of Cummins’s conduct because he trusted his staff and relied on them to do their jobs without being micromanaged, the duty to supervise staff in the processing, accounting, and expenditure of public funds is an important role of a mayor – a duty in which
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Christopher failed. Christopher chose to neglect this managerial duty at his own peril. And refusing to provide City financial information to members of Council during a time the City was experiencing bounced checks and unpaid financial obligations was further evidence of willful neglect.
The dismissive and profane text instructing an employee to ignore Council supports the conclusion of willfulness in Christopher’s actions. The evidence as a whole has sufficient probative value to induce conviction in the minds of reasonable people that Christopher willfully neglected his duties as Mayor. There was sufficient, substantial evidence to support Council’s final action in removing Christopher from office. The evidence supported the charges. Council’s actions were neither arbitrary nor capricious.
Christopher’s fifth and sixth challenges concern whether Council committed error at the meeting held March 18, 2025, when it hired independent legal counsel, and on April 1, 2025, when it took formal action charging Christopher with neglect of duties and setting the removal hearing. We find these errors are not properly before us in this case, regardless of the briefing deficiencies.
As we recounted earlier, Christopher filed a prior civil action. There, he sought injunctive relief to set aside the actions Council took on March 18, 2025, and April 1, 2025. The circuit court addressed the challenges to these hearings, denied injunctive relief, and allowed the removal hearing to proceed. Christopher
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failed to appeal the order entered in this first case. Instead of filing an appeal, he proceeded with the removal hearing and when Council rendered an unfavorable decision, filed the instant appeal in circuit court to challenge his removal. Any attempts to relitigate matters arising from the special meetings held March 18th or April 1st are now waived. Also, for reasons we have stated in this Opinion, the arguments, even if proven, would not have justified voiding Christopher’s removal.
Christopher’s seventh challenge concerns whether Council violated KRS 61.823(4)(c) with respect to the notice requirements for the special meeting held April 21, 2025. Technically, it did. This statute requires that notice of a special meeting, such as the one involved in this case, must be posted in a conspicuous place in the building where the special meeting will take place and in a conspicuous place in the building which houses the headquarters of the agency. The notice shall be posted at least 24 hours before the special meeting.
Here, notice of the removal hearing was posted on the doors of the Justice Center (originally the planned location of the April 21st meeting), City Hall (building which houses the headquarters of the agency), and on the City’s social media sites. During arguments before the hearing officer and the circuit court, Council advised that on Good Friday, April 18, 2025, members were told the special meeting’s location was being changed from the Justice Center to the Grant County Courthouse. This information was also communicated to Christopher and
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his legal team. Council acknowledged they did not post another notice in the Grant County Courthouse building over the holiday weekend or even on the morning of the removal hearing. The Grant County Courthouse was closed and locked due to the holiday.
Despite Christopher’s objection to the special hearing for failure to strictly comply with notice requirements, the special meeting was allowed to proceed. Clifton testified that no one visited the City Clerk’s office on April 21st to inquire as to the change in location. And, as we have previously observed, the meeting was well attended by both the public and the media.
Council points out that KRS 61.848(5) requires only substantial compliance with the notice statute. Christopher argues strict compliance is required. Council is correct. KRS 61.848(5) specifically allows for substantial compliance with the notice requirements of KRS 61.823. Even when substantial compliance is absent, the circuit court must look at what happened to determine if voiding should occur.
In addition, we also find Christopher suffered no prejudice because of the notices posted in this case. There is no evidence that either party failed to receive notice of the last-minute change in the removal hearing’s location, or that Council had control over the last-minute change in location, or that any witnesses
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were unavailable due to the change. More importantly no member of the public complained about any lack of notice.
Here we take the time to comment again on the purpose of the OMA.
It is primarily for the public’s benefit, although it also assures individuals that actions against them will not take place without public oversight. But, it is not intended to serve as a cudgel for a public official justifiably removed from office for neglect of duty to invalidate that decision on technicalities of public notice. The record contains no complaint from any member of the public who failed to get notice because of the single failure to have notice posted in the Grant County Courthouse. The presence of dozens of people and the media belies the complaint that the public was injured by any non-compliance here.
Christopher’s eighth challenge concerns whether Council violated the OMA by using an improper presiding official. Christopher argues that Council erred in utilizing retired Judge Bates as a hearing officer to oversee the April 21st removal hearing. He maintains that KRS 83A.130(5) requires that the mayor (or, if provided by local ordinance, a council member) preside over a city council meeting. There is no provision for a third party to do so.
Council argues in response that the mayor’s removal hearing is governed more specifically by KRS 83A.040(9), which places no restrictions on how to conduct a removal hearing. Council also argues Christopher suffered no
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prejudice because of Judge Bates’s involvement in the hearing. Council is correct on this issue as well.
KRS 83A.040(9) articulates no other procedure on how to conduct a removal hearing other than requiring (1) a unanimous vote (2) after a full public hearing. Both of those things occurred here, even if the deliberations after the public hearing were not subject to public view.
While KRS 83A.130(5) requires the mayor, or a council member, to preside over city council meetings generally, mayors have no statutory right to oversee their own removal hearing. Nor is the process necessarily served well if a Council member must act as the presiding officer having voted to issue the charging document. A neutral presiding officer gave assurance of a fairer process for Christopher. It is axiomatic that, when interpreting a provision of a statute, a court should not interpret a provision in a manner that brings about an absurd or unreasonable result. Schoenbachler v. Minyard, 110 S.W.3d 776, 783 (Ky. 2003).
We also note that Christopher failed to object to Judge Bates’s serving as the hearing officer at the removal hearing. At the start of the record, Judge Bates disclosed he was serving by agreement of the parties, and that attorneys often refer to him as “Judge” but that was really more of a nickname, given his retirement from that post. He further explained that the removal hearing was not a judicial proceeding, but rather, a statutory proceeding under KRS Chapter 83A.
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Because the removal statute is somewhat vague as to procedure, the parties not only agreed to the selection of the hearing officer, but to the applicability of the Kentucky Rules of Evidence as well. It is disingenuous now for Christopher to challenge Judge Bates’s service as the hearing officer as statutorily impermissible.
Finally, we view Christopher’s ninth argument, that the circuit court erred in determining any errors were “harmless,” to be without merit. The circuit court found substantial compliance with the procedural mandates governing the removal proceedings and the OMA. To the extent non-compliance was shown, nothing required voiding the Council’s action. We view any remaining, miscellaneous contentions of error to be moot or without merit.
CONCLUSION
The Grant Circuit Court did not abuse its discretion in declining to void the removal of Christopher as the Mayor of the City of Williamstown and is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Greg D. Voss Covington, Kentucky
Jeffrey Otis Florence, Kentucky