Request By:
Kevin M. Noland, Esq.
Associate Commissioner
Office of Legal Services
Kentucky Department of Education
Capital Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your letter concerns the Kentucky Open Meetings Law (KRS 61.805 to KRS 61.850) and the validity of conducting a meeting by telephone conference call.
You state that the eleven members of the State Board for Elementary and Secondary Education are from all over the state and must frequently travel to Frankfort for regular and special meetings. Sometimes there are emergency situations which require a special meeting with a limited agenda at which times it is inconvenient for a quorum of the Board to be present in Frankfort for such a meeting.
Your question asks whether it is legally permissible under the Open Meetings Act for the Board in question to conduct a meeting by telephone conference call, with appropriate notice to the media and all concerned parties, with a speaker telephone set up in the Board's Frankfort meeting room for all interested persons to listen to the meeting and to take part in the meeting when appropriate.
The Open Meetings Act was substantially amended by the 1992 Regular Session of the Kentucky General Assembly. Neither in the Act as amended in 1992 or in any of the years since its original enactment in 1974 is there any section specifically authorizing any kind of public meeting by telephone or even dealing with that subject. The legislative statement of policy, enacted in 1992 and codified as KRS 61.800, provides in part that any exceptions to open and public meetings of public agencies shall be strictly construed.
KRS 61.820 deals with regular meetings of public agencies. KRS 61.823 concerns special meetings and emergency situations which excuse public agencies from complying with the notice and posting requirements normally applicable to special meetings. Neither of these sections makes any reference to telephone meetings.
The court in Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Company, Ky., 554 S.W.2d 72 (1977) voided the telephone vote of the fiscal court on various matters. The court did not specifically discuss the issue of the vote by telephone but cited its decision in Jefferson County Board of Education v. Courier-Journal, Ky.App., 551 S.W.2d 25 (1977). This latter case dealt with various aspects of the Open Meetings Act but not specifically with voting by telephone or meetings by telephone.
In OAG 82-179, copy enclosed, this office concluded that under the facts of that particular situation a public agency could hold a disciplinary hearing by telephone. The opinion noted that such a proceeding is exempt from the open meetings requirements. At page two, however, of OAG 82-179, this office said that if a meeting is required to be conducted as an open and public meeting it cannot be held by telephone conference call.
In OAG 80-426, copy enclosed, at page two, this office said that meetings by a telephone conference call are a violation of the Open Meetings Act as a conference of a quorum would be a subversion of the law.
In OAG 78-808, copy enclosed, at page two, this office noted that the Open Meetings Act and the applicable court decision "appear to make telephone meetings completely unacceptable under the Open Meetings Law." The opinion did state, however, that in an emergency situation a telephone conference call may be acceptable "but the fact that a statutory emergency exists should be well documented."
While OAG 78-808 appears to authorize a meeting by a conference telephone call "in rare emergency cases," the fact remains that KRS 61.823, dealing with special meetings and emergencies, only permits the public agency to ignore the notice and posting requirements in the case of an emergency. There is no statutory provision authorizing a meeting by a telephone conference call under any circumstances.
Thus, it is the opinion of the Attorney General that under the terms and provisions of the Open Meetings Act, as enacted and amended by the General Assembly, there is no statutory authority for a public agency to conduct a meeting, which is required to be open to public, by telephone even if the telephone meeting involves a conference call with a speaker system.