Request By:
Ken Pschorr
1257 Nina Ridge
Lancaster, KY40475E.J. Hasty
Garrard County Judge Executive
15 Public Square
Lancaster, KY 40444Jeff Moss
Garrard County Attorney
102 Stanford Street, Ste. 2
Lancaster, KY 40444
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Garrard County Fiscal Court required members of the public attending a September 27, 2004 public meeting of the Fiscal Court to identify themselves by signing a sign-up sheet in violation of the Open Meetings Act. For the reasons that follow, we conclude that the violation of the Act occasioned by the Fiscal Court having a guideline published in the local newspaper that persons attending the meeting would have to sign a sign up sheet and give their name and address was mitigated by the fact such a guideline was neither required nor made a condition for attendance at the meeting.
On October 5, 2004, Ken Pschorr submitted an open meetings complaint to Garrard County Judge Executive E. J. Hasty. In his complaint, Mr. Pschorr alleged that the Fiscal Court's Guidelines to conduct its September 27, 2004 meeting "in an orderly fashion," which were published in the Garrard Central Record newspaper, violated the Open Meetings Act. Specifically, Mr. Pschorr alleged:
Your published guidelines state: " There will be a sign-up sheet at the door for all individuals attending the meeting. People will be required to give their name and address ".
The attendance requirement violated State Statute KRS 61.840. It was published in the Central Record; it was a clear and definite message to the public; now it needs to be publicly corrected.
KRS 61.846 requires a written complaint be submitted to the presiding officer, the complaint shall state the circumstances, which constitute the alleged violation and shall state what the public agency should do to remedy the alleged violation.
Although the requirement to attend was not strictly enforced there was an official of the court, with a sign up sheet at the auditorium entrance. That request by a Court Official was illegal; the published statement quoted above was illegal.
You as County Judge Executive are the presiding officer of the Fiscal Court. You should publish a retraction of your requirements for attendance of this or any other public meeting. That retraction needs to be posted and published in the same forums used prior to the meeting on September 27, 2004. Additionally you should publish the guidelines for public attendance as stated in the Open Meeting Act KRS 61.480.
On October 14, 2004, Jeff Moss, Garrard County Attorney, issued a written response to Mr. Pschorr's complaint on behalf of the Fiscal Court. Denying that any violation of the Open Meetings Act occurred, Mr. Moss explained:
As you discussed in your inquiry, no one who attend [ed] the special meeting of the Garrard County Fiscal Court on Monday, September 27, 2004 was required to sign in before entering the auditorium. If I am not mistaken someone asked that at the time you entered the meeting and they were advised that the sign-in sheets were a request not a requirement. I believe this will be on your video. At the time you entered a number of individuals entered the meeting without signing in. At no time were they asked to leave or treated different in any way from the individuals that were willing to sign-in. Any possible error in the "guidelines" was remedied well before people began to arrive at the meeting.
KRS 61.840 allows conditions to maintain order to be placed on attendance at public meetings. As you are aware several fiscal court meetings prior to September 27, 2004 lacked order. The "guidelines" were developed with the intent of maintaining order throughout to allow effective public observation and participation in the meeting.
Lastly, the ultimate remedy to a violation of Open Meetings law is to declare any action taken at the meeting to be null and void. As you are aware no motions were passed at the September 27 meeting. Therefore no action was taken. Please understand the fiscal court is in no way admitting that any violation occurred at the September 27 meeting. If it had however, since no action was taken that was no violation. Judge Hasty cannot declare as null and void something that did not happen.
By letter dated November 10, 2004, Mr. Pschorr submitted a response to Mr. Moss' letter, stating in part:
Thank you for you[r] response to my letter to Judge Hasty but I respectfully disagree with the "remedy" to the Open Meetings violation. I do agree: even though you had a table set up at the entrance to the auditorium with a sign up sheet, you did not require anyone to sign in to attend (although in my opinion that would be the implication). You stated and requested of any who asked: for them to sign in at the entrance to the auditorium, not as a requirement to attend, not as a requirement to speak, not as a prerequisite to speak but so a good count could be taken of those attending the special meeting. I would think a simple head count from the back of the auditorium after the meeting started would have worked better since as you state in your letter "a number of individuals entered the meeting without signing in."
I must have missed the remedy to the "possible error in the "guidelines" " that took place "well before people began to arrive at the meeting." A correction was never printed in the Central Record, nor was any posted at the meeting or at the Court House and to my knowledge no announcement was ever made to the public addressing the published guidelines of " There will be a sign-up sheet at the door for all individuals attending the meeting. People will be required to give their name and address ." That statement of the requirement for attendance is a clear violation of point 2 of KRS 61.840.
KRS 61.840 has several points. Point 3 is separate from point 2 and addresses the guidelines to maintain order and in fact states: " No condition other than those required for the maintenance of order shall apply to the attendance of the public at any meeting ". That seems to me to reinforce the violation with respect to the printed requirement for attendance.
Shortly thereafter, Mr. Pschorr initiated an appeal to the Attorney General. In his letter of appeal, he stated:
The public should have the right to attend our county government's meetings without fear of retribution of any kind for voicing an opinion, for or against an issue. On 9-27 there was a table, with a sign up sheet set up at the entrance to the auditorium and was manned by the county attorney, add to that the published requirement for attendance to the special meeting, these implied to many that a list would be compiled and implied to many they could be singled out (if they voiced their opinion). It also adversely affected attendance. No attempt to remedy the violation of the Open Meetings Act or to clearly inform the public of the requirements for attendance has been taken and absolutely no action was taken and nothing remedied " well before people began to arrive at the meeting ". The Fiscal Court violated the Open Meetings statute 61.840 by publishing an attendance requirement, they also violated the "spirit" of the law by having a sign in station at the entrance of the meeting.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Moss provided this office with a response to the issues raised in the appeal. In his response, he explained in relevant part:
The night of the meeting a table was set up approximately ten feet past the door of the high school auditorium. The table in no way impeded entrance into the room where the meeting would take place. On the table were copies of the goals and objectives to be considered by the court and some blank notepads. I manned this table until just before the meeting began. Everyone that came to the meeting was offered a copy of the goals and objectives. Notepads were present for anyone willing to sign. As Mr. Pschorr and his entourage came to the table, someone asked if the sign-in was mandatory. It was explained clearly and without question that the sheet was voluntary and that no one would be prevented from entering the meeting for not signing. Mr. Pschorr was manning a video camera at the time and his unedited video may be of some assistance to you. Pschorr and his assistants entered without signing anything and most, if not all, voiced comments and contributed to the meeting.
The Court offers that there was no violation of KRS 61.840 as no condition for attendance was present. The sign-in sheets were not mandatory and Mr. Pschorr's attendance at the meeting, acknowledged in his letters, is proof of that fact. Once the meeting began no one was treated differently based on whether they signed in or not. Anyone who wished was allowed to speak and present their views on the topic.
?
Mr. Pschorr demands the Garrard County Judge Executive E. J. Hasty "publish a retraction of (his) requirements for attendance of this or any other meeting." Pschorr also requires publication of the public attendance guidelines from the Open Meetings Act. This remedial solution shows that Pschorr agrees this issue is moot. He does not request that the court revisit the actions in question because he would be forced to acknowledge that no action occurred. If the Court was attempting to enforce or utilize the requirements as published by the Central Record, I would agree with Mr. Pschorr but that is not the case. The Court has at no time in its history operated under the rules as published. The Court does not intend to operate in the future under the rules as published. Again, publishing a legal notice declaring a promise not to do something that has not been done in the past would be a serious waste of taxpayer's money.
Resolution of the issue in this appeal turns on an interpretation of the scope of KRS 61.840. That statute provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
Citing prior decisions interpreting KRS 61.840, this office in 00-OMD-169, stated:
In construing this provision, the Attorney General has recognized, on at least two occasions, that KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency. 94-ORD-45; 95-OMD-99. Conditions on attendance, such as residency in the city or county served by the public body (98-OMD-44), or a mandatory sign-in sheet (98-OMD-44; 00-OMD-63) have been held to contravene KRS 61.840.
In 98-OMD-44, this office condemned the practice of requiring attendees to indicate their place of residence for purposes of providing preferential seating in council chambers to those attendees who resided in the area affected by the subject matter of the city council meeting. Although the attendees were not required to identify themselves by name or address, we nevertheless held that the agency's practice contravened KRS 61.840 "by impermissibly requiring persons who attend its meetings to provide identifying information." 98-OMD-44, p. 4. In a 00-OMD-63, we held that a sign-in sheet at the entrance of a fiscal court's meeting room, which the fiscal court required attendees to sign "as an apparent, if not actual, precondition to attending the meeting," abridged the rights of persons attending to do so without identifying themselves. 00-OMD-63, p. 7. In 98-OMD-44 and 00-OMD-63, the registration requirement was imposed by the agency conducting the meeting.
In this case, the Fiscal Court's guidelines for the September 27, 2004 meeting, published in the local paper, clearly evidenced the agency's intention that there would be a sign-up sheet at the door for all individuals attending the meeting and people would be required to give their name and address. Imposing this published guideline as a condition of attending the meeting would abridge the rights of persons attending the meeting and clearly would be a violation of KRS 61.840 and the Open Meetings Act. However, retreating from this published position at the September 27, 2004 meeting, the Fiscal Court's violation was mitigated by the fact that compliance with such a guideline was neither required nor made a condition for attendance at the meeting. The record on appeal confirms that the Garrard County Fiscal Court now clearly understands its duties under the Open Meetings Act, and that it has indicated that it intends to discharge those duties as the law requires and conform to the requirements of KRS 61.840.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.