Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Warren County Board of Education violated the Kentucky Open Meetings Act in failing to conduct its April 29, 2013, special meeting in a place "convenient to the public" and "provide meeting room conditions" which allowed "effective public observation of the meeting" per KRS 61.820 and 61.840, respectively. 1 The instant appeal is factually distinguishable from Knox County v. Hammons, 129 S.W.3d 839, 845 (Ky. 2004) insofar as there is uncontested proof that "persons wishing to attend or participate in the [April 29] proceeding were effectively prevented from doing so." Because "members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings," 95-OMD-99, p. 3, and the Board was required to make "reasonable efforts to ensure the broadest possible participation," 06-OMD-079, p. 7, the Board violated the Act in failing to make any efforts to accommodate the large crowd that wished to attend its April 29 meeting.
In a written complaint directed to Chairman Kerry Young and Interim Superintendent Kathy E. Goff on May 10, 2013, Cameron Lebedinsky advised that she attempted to attend the meeting held on April 29 but was not allowed to enter. Referencing the "controversial decision" made by the Board at its April 18 meeting (to "reduce the number of students it would allow to transfer to the Bowling Green Independent School System with SEEK funding") without "notice or discussion within the community," Ms. Lebedinsky alleged that the Board "knew, or should have known, prior to April 29 that many interested people would be in attendance at the April 29 meeting." She knew of several people who mentioned their intention to attend to both Superintendent Goff and members of the Board in e-mail correspondence. Ms. Lebedinsky noted that "[h]undreds of people showed up on April 29" for the Board's meeting and it "should have been apparent" before 6:45 p.m. that the regular meeting room would not accommodate the crowd in attendance that evening. Two employees of the Sheriff's Office were present, Ms. Lebedinsky observed, who informed people they would not be allowed to enter the room unless there was an empty chair available. When all chairs were filled, the doors were shut. Instead of moving the meeting to an overflow location, she complained, the Board proceeded with its meeting, "literally leaving hundreds of interested people outside closed doors."
According to Ms. Lebedinsky, the Board held a closed session during the middle of the meeting, after which it allowed "its employees and interested people to enter the room first." Others were allowed in "to the extent there were empty seats." It was her "understanding" that during the second part of the meeting the Board had a "working session regarding its finances and voted to pass a budget. " Because the Board was "claiming its April 18 decision was a financial one," Ms. Lebedinsky believed that "all concerned citizens deserved to be able to hear the information conveyed during this working session and to be present during any vote regarding the budget. " To remedy this alleged violation, she proposed that actions taken by the Board should be declared null and void. "All such actions taken," including the aforementioned working session, Ms. Lebedinsky asserted, "should be required to be taken at a true open meeting where Warren County citizens have the opportunity to observe the information presented to and actions taken by" the Board.
By letter dated May 16, 2013, Interim Superintendent Goff advised "[t]here was no vote taken on a budget. There was no contact from any [particular] group suggesting that large numbers would be present at a meeting that involved issues which, heretofore, had drawn virtually no persons other than the board members and district employees who might be involved." Superintendent Goff further explained there was "no public comment agenda item as it was a special meeting basically for finance personnel to present to the [B]oard on various matters. There was no agenda item relative to the non-resident contract in which you express interest." The Board has only had "a very few meetings" for which the boardroom would not accommodate the expected audience, Superintendent Goff noted, "and those typically involve presentations and/or large groups of students the Board is to recognize and honor. Those meetings are scheduled for different and larger locations." Superintendent Goff acknowledged that rumors had initially circulated indicating that supporters of the Bowling Green Independent Schools had plans to attend the meeting for the purpose of addressing the Board regarding the non-resident contract issue during the public comment section of the meeting; however, the media subsequently reported that no public comment was on the agenda for that meeting and the prior rumors "were not about people interested in attending a working session on the budget. " In closing, Superintendent Goff explained that the Board typically has a Sheriff's Deputy(ies) present during meetings and the "technology associated and involved in our meetings makes it very difficult to move to another location on short notice. "
By letter dated June 17, 2013, Ms. Lebedinsky initiated this appeal, reiterating that "[m]ore than 100 other people were also denied entrance to this meeting, which was documented by the local news media. . . . See . . . http://www.bgdailynews.com/news/local/parents-make-pleas/article_6e3760…. "Ms. Lebedinsky emphasized that thecrowd arrived at least 15 minutes before the April 29 meeting was scheduled to begin and the Board "made no effort to move its meeting next door to Briarwood Elementary School, or anywhere else, to accommodate the large number of people who wanted to attend. " Lastly, she noted that on June 10, 2013, attendees were allowed to fill the seats and stand around the perimeter of the boardroom. Unless the fire code has changed within the past month and a half, she concluded, this demonstrates the Board's justification for limiting attendance on April 29 "was a pretext for its illegal actions."
Upon receiving notification of Ms. Lebedinsky's appeal from this office, Barton D. Darrell, General Counsel, Warren County Public Schools, responded on behalf of the Board. He noted that a special meeting was scheduled on April 29 for "limited purposes," reiterating Superintendent Goff's explanation regarding the rumors and the subsequent notification by the media that no public comment item was listed on the agenda. Mr. Darrell advised that no public comment was permitted "because the meeting was primarily called for a working session on the budget, though five small administrative items were to be handled as well," none of which involved any discussion of the non-resident contract issue about which Ms. Lebedinsky "and her group" were interested. The same newspaper article, Mr. Darrell explained, also notified the public that "there would be public comment specifically on the non-resident contract issue at the Board's next regular meeting scheduled for May 21, 2013," which it held in a high school gymnasium that accommodates 2,500 people. 2
Because the public was provided with (statutorily required) notice regarding the items that would be discussed, Mr. Darrell argued, the Board "had no reason to anticipate a large audience at the meeting since the number of citizens who have appeared at special meetings of the type held on April 29, 2013 has not, in the memory of administrators or board members in the District, exceeded a 'handful.'" According to Mr. Darrell, it was not "practical" to move the meeting to a different location shortly before the meeting when Ms. Lebedinsky and her group began arriving. "That would have involved setting up electronics, speakers, technology, etc. in an elementary school gymnasium at Briarwood Elementary School, located on property adjacent to the Central Office." The Board asserted that such a setup "is no small task but certainly able to be accomplished with more notice. " Mr. Darrell advised that no person had contacted the Board or the Central Office to indicate that a large group was "still planning to attend after the public explanation of the meeting's purpose." Relying upon 94-OMD-087, Mr. Darrell contended that the Attorney General has recognized that "if a public body acted in 'good faith' and the facilities were reasonable for the size of the meeting expected, the body would not have to cancel the meeting because more people came to the meeting than was reasonably anticipated. " Further, "no person who attended the meeting complained to the Board about everyone not being able to come inside the Board Room." Citing 04-OMD-001, he argued that "attendees have a duty to voice objection to the meeting room and the inability, though the desire, to participate as a spectator at the meeting before the Board could consider a remedy, even if one was practical." He noted that the crowd gathered outside "chanted loudly" regarding the non-resident contract while in the parking lot during the meeting, something that certainly would not have permitted in the boardroom during the discussion of next year's budget. However, at least two Board meetings have been held since April 29 where public comment was on the agenda so individuals were permitted to address the Board regarding the non-resident contract issue. Finally, Mr. Darrell stated that the Board "does not control the Sheriff's Department" nor did the Board "draft the 'fire code.'"
The question is a close one; however, in failing to make any reasonable attempt to ensure that members of the public who wished to attend the April 29 special meeting could effectively observe the proceedings, the Board violated the Act notwithstanding the fact that such a large crowd was not anticipated. Members of the public did not have a duty to notify the Board of whether they planned to attend the meeting or specify their purpose for doing so. Neither this fact nor the fact that subsequent public discussions regarding the non-resident contract were permitted alters our conclusion.
The Attorney General has, on several occasions, declared that a public agency's failure to address the problem of overcrowding at the site chosen for a meeting constitutes a violation of the Open Meetings Act. See, for example, 97-OMD-28; 98-OMD-74. These decisions were premised on KRS 61.820, which provides that "all meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public," and KRS 61.840 which imposes a corollary duty on public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meeting."
In 97-OMD-28, the Attorney General held that the Henderson County Board of Education violated the Act because it did not take action when confronted with a larger than anticipated crowd. This office reasoned:
It may be that on most occasions the site of the . . . meeting would have been sufficient to accommodate the anticipated crowds. Since on this particular day the meeting site could not accommodate the number of people attending the meeting, the public agency was under a duty to make some attempt to correct the matter. Neither the Open Meetings Act nor decisions of this office specify the particular action an agency must take; rather, the agency's actions are dependent on the particular factual situation. It is not enough to concede that the meeting room was crowded. The public agency had an obligation to address the problems, particularly with regard to . . . those in the hallway outside the meeting room.
97-OMD-28, p. 2; compare 94-OMD-87 (holding that where the meeting was held in a room that would normally accommodate all those desiring to attend, and the public agency made arrangements to permit the overflow crowd to view the meeting from another room by means of television monitors , the agency fully complied with the law); 98-OMD-44 (holding that public agency properly attempted to deal with overflow crowd by setting up a monitor in an adjoining room); 03-OMD-178 (holding that agency cannot be held accountable for attendees' inability to hear where agency members were not advised of the problem; accord, 04-OMD-001). In 94-OMD-87, above, upon which the Board partially relied, our holding was contingent on the fact that "on this specific occasion the [agency] offered to allow the overflow crowd to view the meeting from another room by television." 94-OMD-87, p. 2. Further, in both 03-OMD-178 and 04-OMD-001 (also relied upon by the Board), this office was actually unable to conclusively resolve the question of whether a violation was committed simply because of the conflicting evidentiary record; however, this office emphasized that "every feasible measure" should be taken by the agency to ensure the public was able to effectively observe the proceedings. 03-OMD-178, p. 17; 04-OMD-001, p. 3. The Attorney General also encouraged the agencies "to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840." Id. In this instance, it was self-evident 3 that none of the large crowd remaining outside after the doors were closed was able to see and/or hear the proceedings, and no measures of any kind were taken, let alone "every feasible measure," or "appropriate measures, " to ensure the public was able to effectively observe the proceedings in accordance with KRS 61.840.
This office finds additional guidance on the question presented in Knox County v. Hammons , above . The appellees/taxpayers in Hammons claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id. at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the annual Daniel Boone Festival. Id. According to the taxpayers, Knox County did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance should have been invalidated. Id. As the Court observed:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway.
Id. When viewed in context, such conditions did not constitute a violation of KRS 61.820 or KRS 61.840. Unlike in Hammons , the 100 citizens gathered outside the boardroom here could not even "observe" the proceedings by listening. Although some may have been able to observe the proceedings through windows, judging by the publicly available photographs and video of the meeting site, any discussion of public business would not have been audible by the majority of the crowd, if any, nor does the Board dispute this fact.
Agreeing with both the trial court and the Court of Appeals, the Supreme Court in Hammons found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id. Even if holding the meeting at that time was necessary, the Court reasoned, the Fiscal Court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id. That said, the Court nevertheless concluded that the Fiscal Court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840 on the facts presented. Id. at 845. The Court reasoned:
The intent of the open meetings statutes is to ensure that government business is not conducted in secret, that the public is adequately notified of the time and nature of government proceedings, and that interested citizens be afforded the opportunity to participate in such proceedings. In short, the open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location.
Id. Although the Court indisputably established a more lenient standard in Knox , the Court did not establish a blanket rule as to application of KRS 61.820 and 61.840; rather, the Court found that a violation(s) did not occur in that particular case, relying largely on the fact that nothing in the record indicated that "persons wishing to attend or participate in the proceeding were effectively prevented from doing so." Id. at 845. In other words, the analysis relative to KRS 61.820 and 61.840, as with all issues arising under the Open Meetings Act, remains fact specific.
In this case, objective proof in the form of publicly available photographs and video makes it readily apparent that a large number of people were, in fact, prevented from attending or, in the relevant sense, participating, i.e. , observing with their eyes and/or ears. It is also noteworthy that the Knox Fiscal Court had already moved the meeting from the Fiscal Court meeting room to the larger Knox District Court courtroom to accommodate the crowd anticipated for the first reading of the ordinance and the Fiscal Court "again moved the meeting from the fiscal court room to the district courtroom" for the second reading of the ordinance. Id. at 841. The Fiscal Court in Knox , unlike the Board in this case, had taken "every feasible measure" to ensure the public could effectively observe the proceedings. 03-OMD-178, p. 17; see 06-OMD-079 (Attorney General was reluctant to assign error when the written record suggested that reasonable efforts were made to ensure the broadest possible participation ). Although the Board credibly argued that it did not anticipate such a large crowd in light of the fact that public comment regarding the non-resident contract issue was not listed on the public notice (required under KRS 61.823(3) and (4)) of the special meeting, when it became apparent that such a large crowd wished to attend the meeting and observe the discussion of public business, the Board was required to take appropriate measures to ensure effective public observation per KRS 61.840. In the absence of more detailed information regarding why it was impractical or difficult, as opposed to merely inconvenient, to relocate the meeting to a nearby gymnasium that would have accommodated the crowd, this office must conclude that the Board violated the Act.
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.
Distributed to:
Cameron LebedinskyKathy E. GoffBarton D. Darrell
Footnotes
Footnotes
1 KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
KRS 61.840 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.
2 Mr. Darrell correctly noted that participating by public comment is not required under the Open Meetings Act, citing 95-OMD-99 and 00-OMD-169; however, the Board, to its credit, apparently has a public comment section during its regular monthly meetings.
3 The courts have recognized that generally speaking "[t]here is no requirement of public objection found in the [open meetings] statute." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 924 (1997). However, in 03-OMD-178 this office agreed with the agency's position that "agency members or meeting participants whose statements are inaudible, but who are unaware of the problem cannot reasonably be expected to rectify the problem . . . ." As indicated, even if the courts required such an express objection by members of the public, in this particular scenario any reasonable person would have known that none of the public standing outside was able to effectively observe the proceedings and, from a practical standpoint, objecting was impossible for those denied entry to the meeting.