Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Taylorsville City Commission violated KRS 61.820(1) when it failed to make adequate provision for the "convenience" of the public during a closed session conducted at its December 3, 2013, meeting. In light of a recent amendment to KRS 61.820(1), we find that the Commission's actions violated that provision of the Open Meetings Act.
In a written complaint dated December 12, 2013, and directed to Mayor Don Pay, Lawrence Trageser alleged that in the course of the December 3 meeting the Commission "invoked the right to enter into an executive session and required all citizens attending the meeting to leave" the City Hall Annex in which the meeting was conducted and wait outside. Mr. Trageser maintained that this practice prompted citizens to leave before "the meeting's conclusion, . . . obstruct[ing] their right to attend [and] to be informed about what action will be taken after an executive session without undue exposure to weather." He noted the absence of seating in the outdoor area adjacent to the Annex as well as the existence of "a room at the rear of the building" in which the Commission could conduct executive sessions. In subsequent correspondence incorporating his December 12 letter by reference, Mr. Trageser refined this proposed remedy, suggesting that the Commission discontinue the practice of requiring attendees to wait outside the City Hall Annex during its executive sessions and that it conduct executive sessions in the rear room of the Annex.
The Commission denied the allegations of Mr. Trageser's complaint in a timely written response. On behalf of the Commission, Taylorsville City Clerk Stephen A. Biven expressed the Commission's belief that it is "in compliance due to the fact that the open meetings statute does not address where a closed session is to be held or whether an agency has to provide the public a waiting room while the agency is in closed session. " Following receipt of notification of Mr. Trageser's open meetings appeal, Taylorsville City Attorney John Dale amplified on the Commission's position. Mr. Dale provided this office with a copy of a response to Mr. Trageser's December 12 complaint in which Mr. Biven observed:
The observed public practice for those in attendance during these last 20 years is that there is little or no interest in waiting around to hear the motions of the Commission, if indeed any action is taken by them at all. The public has been comfortable with the current arrangement, which had apparently accommodated their need to smoke, speak loudly, drive around in their cars, leave or remain outside. Even the local newspaper sometimes prefers to leave and have city staff advise them on the action of the Commission. With this being the norm and there not being any requirements to provide waiting space, the city commission has remained at their bench during this session.
Given the absence of any such legal requirement, and the impracticality of utilizing the rear room for executive sessions, 1 Mr. Dale maintained that the Commission did not violate the Open Meetings Act by asking members of the public in attendance to wait outside during its December 3 closed session.
Prior to June 25, 2013, Kentucky's Open Meetings Act did not expressly address public "convenience" in the context of KRS 61.820(1). That statute formerly provided, in relevant part, that "[a]ll 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." In 2013, the General Assembly approved language aimed at clarifying the meaning of "convenient" as it relates to "locations for public meetings" enacting into law the requirement that in considering such locations "the agency shall evaluate space requirements, seating capacity, and acoustics." 2 A careful reading of this newly introduced language supports Mr. Trageser's belief that it is not restricted to open sessions but requires agencies, generally, to consider these facts in making adequate provision for the public's convenience during the course of the entire meeting and not just during open session.
The term "convenient" is commonly understood to mean "suited or favorable to one's comfort, purpose, or needs[.]" The American Heritage College Dictionary 312 (4th ed. 2002); see also Merriam-Webster's Collegiate Dictionary 813 (10th ed. 1998) ("suited to personal comfort or to easy performance"). A meeting location that is unsuited to a reasonable standard of personal comfort at all times, and not just during an open session, is inconvenient under KRS 61.820(1) as amended. It is incumbent on public agencies, including the Taylorsville City Commission, to make adequate provision for the public's "convenience" not only during their open sessions but also when their sessions are lawfully closed. We assign no error to the Commission for its pre-June 25, 2013, practice, KRS 61.820(1) having previously been devoid of any specifications about accommodating the public. We also acknowledge our role in the Commission's misunderstanding of its legal obligations. 3 We find, however, that the Commission violated KRS 61.820(1) at its December 3 regular meeting when it required members of the public in attendance to leave the Annex at the commencement of its executive session and remain in the parking lot until the open session resumed in order to learn what final action the Commission took.
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:
Lawrence TrageserDon PayStephen A. BivenJohn Dale
Footnotes
Footnotes
1 Mr. Dale explained:
The "back room" referred to by Mr. Trageser is a small room adjacent to the City's larger meeting room and used primarily for storage containing a copier, some office supplies, a desk and is also used as a make-shift office for the Mayor. The room is not large enough to adequately contain the 8 to 10 people who generally end up in the Executive Sessions even if the foregoing items are removed. The City Annex building contains only the meeting room and the "back room" and is not immediately adjacent to any other City buildings.
By our calculations, a maximum of seven people should "end up" in closed session: the mayor and four commissioners, the clerk, and the city attorney. It is unclear why eight to ten people "generally end up" in closed session.
2 Similar language was added to KRS 61.840, relating to conditions for attendance, in 2013. That statute provides that "[a]ll agencies shall provide meeting room conditions, including adequate space, seating, and acoustics , which insofar as feasible allow effective public observation of the public meetings." (Emphasis added.)
3 The undersigned provided open meeting training to the Commission earlier that evening, expressing concern about the challenged practice but observing that she was unaware of language in the Act directly addressing it. Subsequent review of KRS 61.820(1), as recently amended, altered that view.