Rep. T.J. Roberts, R-Boone County, filed HB 318, an act relating to open meetings, on February 5. If enacted, the bill expands a court’s authority to void action taken at a public meeting that does not substantially comply with open meetings requirements in cases where that penalty is not currently available.

The bill "amends KRS 61.848 to establish that any formal action of a public agency is voidable by a court if there was not substantial compliance with statutes regarding video teleconferencing of meetings, recording of minutes, and conditions for attendance."

https://apps.legislature.ky.gov/record/25rs/HB318.html

That statute currently provides:

"Any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810, 61.815, 61.820, and KRS 61.823 shall be voidable by a court of competent jurisdiction."

HB 318 was assigned to the Committee on Committees.

It is not widely known that the open meetings law establishes two "classes" of violations. One “class” of violations is deemed “voidable” and can be voided by a court. Any action of a public agency that does not "substantially comply" with the requirements of KRS 61.810 (mandate of the law and exceptions); 61.815 (requirements for conducting closed sessions); 61.820 (regular meeting schedule requirement); and KRS 61.823 (requirements for notice of special and emergency meetings) is, under current law, voidable.

The agency action is not automatically void, but it may be voided by a court that finds the agency did not “substantially comply” with one or more of these operative open meetings statutes.

Citing OAG 70-516, the Court of Appeals offered this explanation:

"[A]ctions taken in violation of the Open Meetings Law are voidable by the circuit court. This means that any person may bring an action in the circuit court and if the court finds that the board violated the law, it may declare the action taken void and of no effect. Until the action taken is declared void by the court it remains an official and a valid action of the board."�
https://kyopengov.org/law/ag/1979/oag-79-516

https://kyopengov.org/law/court-decisions/carter-v-smith

The second “class” of open meetings violations cannot, under current law, result in the voiding of action taken. These are: KRS 61.826 (governing video teleconferenced meetings); KRS 61.835 (requiring minutes and their timely availability to the public); KRS 61.840 (prohibiting conditions on attendance and mandating meeting room conditions that allow effective public observation).

These are the provisions Rep. Roberts proposes to add to KRS 61.848(5). The two “classes” of violations would no longer be recognized. Action taken without substantial compliance with any open meetings prohibition or requirement would be voidable. A court could thereafter void that action.

It is possible that Rep. Roberts proposed HB 318 in response to the recent experience of his law partner, Chris Wiest. In September, 2021, Wiest filed an open meetings complaint against the Campbell County Board of Education on behalf of his client, Ken Moelmann. They alleged that the board violated KRS 61.840 by imposing a condition on attendance, specifically, that meeting attendees wear a mask to prevent the spread of COVID.

http://opinions.kycourts.net/COA/2022-CA-001033.PDF

In Campbell County Board of Education v Moelmann, the Court of Appeals held that the board violated KRS 61.840 at four school board meetings conducted in August and September, 2021, by requiring that all in-person attendees wear a mask or other facial covering. But a unanimous panel of appellate judges reversed the circuit court's decision to void the actions taken by the board at those meetings “because KRS 61.848(5) does not specify that violations of KRS 61.840 are voidable.”

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23055

Other open meetings statutes have been amended in the years following the 1992 revisions. KRS 61.848(5) has not. Whatever the reasons, lawmakers established two classes of violations in 1992. The net effect of Rep. Roberts’ bill is to merge the two classes into one as they relate to available penalties.

Lawmakers could not have envisioned the challenges public agencies would face in balancing open meeting’s requirements with protection of public health during a pandemic. Video teleconferencing and mask mandates were entirely foreign to the 1992 revisers. Perhaps change is past due.

If there is a downside to HB 318, it is difficult to identify. Violations premised on the failure to substantially comply with the requirement that the agency provide adequate seating for all attendees (KRS 61.840), for example, are less serious than violations premised on an illegal closed meeting (KRS 61.810) or failure to provide proper notice of a special meeting. (KRS 61.823). But discretion still rests with the court to determine if the seriousness of the violation warrants voiding action taken at the meeting where the violation occurred. And courts, in general, do not exercise this discretion cavalierly.

The Kentucky Open Government Coalition therefore does not oppose HB 318.