Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the University of Louisville Board of Trustees ("U of L Board") violated the Open Meetings Act in holding closed sessions where members participated by video teleconference, and the U of L Board entered into closed session and did not provide notice of the video teleconference meeting. We find that the U of L Board violated the Open Meetings Act in entering closed session and not complying with the video teleconference notice requirements, where members participated by video teleconference.
The Courier-Journal submitted a complaint under the Open Meetings Act to the U of L Board on December 13, 2017. The Courier-Journal alleged a violation "concerning the Board's seemingly routine practice of allowing trustees to participate in closed sessions via videoconference, " including "meetings held on October 2, 2017, September 15, 2017, August 10, 2017, July 20, 2017, and June 28, 2017." The Courier-Journal further alleged that the U of L Board "violated the Act by failing to adhere to the procedural requirements regarding notice of meetings to be conducted via videoconference, " including stating "that the meeting will be a video teleconference" and identifying "the video teleconference locations as well as which, if any, is primary," citing KRS 61.826(2). 1
The U of L Board responded on December 15, 2017, stating that at least a quorum was physically present for each of the closed sessions. The U of L Board argued that "the fact that a board member may, on occasion, have linked electronically to an in-person meeting at which a quorum was physically present - - does not convert that in-person meeting into a meeting through video-teleconference." The U of L Board further cited to 02-OMD-206, arguing that:
Nothing in the Kentucky Open Meetings Laws or in 02-OMD-206 imposes limits on how an individual board member - - whose presence is not required to constitute a quorum - - may participate in a meeting of a public agency board.
In fact, in 02-OMD-206, the Attorney General noted that, in amending the Open Meetings Act in 1994 to authorize the holding of a meeting using video conference technology, the General Assembly reaffirmed the right of the public to both hear and see a quorum . . . of the members of a public agency discuss public business or take action.
The Courier-Journal initiated this appeal on December 21, 2017, arguing that "the term video teleconference . . . . says nothing about quorums; it just requires the meeting to be occurring at two or more places using video and audio equipment." It further argued that 02-OMD-206 "merely held that an agency cannot achieve a quorum by using an audio teleconference . . . . But nothing in 02-OMD-206 remotely suggests that video conferencing could be used for closed sessions . . . ." 2
The U of L Board responded on January 22, 2018, arguing that:
The Board's meetings were not "video teleconferences" because they did not occur in two or more locations. Every meeting of the Board in 2017 occurred in a single location -- the noticed location. At each of those meetings, at least a quorum of the Board was present in person for both open and closed session discussions. There is no suggestion that the public was prohibited from attending the open portions of those meetings at the location where they took place. The fact that a Board member may, on occasion, have linked electronically to a meeting at which a quorum was physically present does not convert that in-person meeting into a "video teleconference. "
. . . . Imposing video or audio teleconference limitations upon a public agency's properly closed sessions would have no impact upon that purpose because the public is not entitled to hear or see the members' discussions in a properly closed session in any event.
KRS 61.826 provides in relevant part:
(1) A public agency may conduct any meeting, other than a closed session, through video teleconference.
(2) Notice of a video teleconference shall comply with the requirements of KRS 61.820 or 61.823 as appropriate. In addition, the notice of a video teleconference shall:
KRS 61.805(5) provides that "'video teleconference' means one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment." The Courier-Journal contends that the meetings of the U of L Board where members attended via video teleconference are all video teleconference meetings, and therefore the requirements of KRS 61.826 apply. The U of L Board contends that because a quorum of the Board was present in one location, the meetings were not "occurring in two (2) or more locations," and therefore the requirements of KRS 61.826 do not apply.
Although we have addressed the issue of the use of video teleconferencing in open meetings informally in another context, this presents the first time the issue has been directly addressed in an open meetings appeal. The provisions at issue were discussed indirectly in 02-OMD-206. In that decision, an agency "permitted one of its members who was not physically present to be counted as part of the quorum . . . by means of a speaker phone that was audible to members of the public in attendance." We began by noting the established law that "there is no statutory authority for an agency to conduct a public meeting by telephone. " Id. (citing Fiscal Court of Jefferson Cnty. v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 73 (Ky. 1977) and 92-OMD-1688). We then noted that "in 1994 the Open Meetings Act was amended to authorize video teleconferencing of meetings," and cited KRS 61.826. 02-OMD-206. We reasoned that "in amending the law in this fashion, the General Assembly reaffirmed the right of the public to both hear and see a quorum of the members of a public agency . . . and implicitly rejecting the notion of audio (telephonic) participation alone. . . . Simply stated, the right of the public to observe the demeanor of agency members is corollary to the right to hear their comments." Id. We concluded that "an absent member cannot be counted as part of a quorum, " and "that an absent member cannot vote though he or she is constructively present by audio connection." Id.
Although KRS 61.826 was discussed in 02-OMD-206, at issue was whether telephone participation was permissible, and we held that it was not. In 13-OMD-118, we held that "this is not to say that the law prohibits an absent member from listening to the proceedings from a remote location, but 'audio (telephonic) participation' by a member is unlawful unless it complies with the procedures for video teleconferencing . . . set forth in KRS 61.826." However, the U of L Board does not claim that the video teleconferencing members merely listened and did not participate in the closed sessions, and the minutes from several of the meetings reflect the participation of video teleconferencing members.
Other states have taken a wide variety of approaches to this issue, based on the language of their respective statutes. 3 As examples, Mississippi allows a quorum to be present at different locations by teleconference or video means, as long as there is video teleconferencing equipment at the place where the public agency normally meets or a specified location. 4 Arizona and Kansas allow meetings to take place by telephone or video teleconference with no additional restrictions. 5 California allows videoconferencing of open or closed sessions, as long as one member of the public agency is physically present at the specified meeting location, with some additional restrictions. 6 Texas allows videoconferencing for smaller governmental bodies only if a quorum is physically present in one location, and for larger governmental bodies only if the presiding member of the meeting is physically present. 7 Virginia allows videoconferencing only if a quorum is present at one primary location. 8 In short, there is no one established answer or trend as to how to reconcile open meetings acts with video teleconferencing. Each state's rules regarding teleconferencing of open meetings depend on that state's particular statutory text, and so our analysis must rely solely on the text and policies expressed in KRS 61.805(5) and KRS 61.826.
"Our primary goal is to discern the intent of the General Assembly, and we discern that intent, if at all possible, simply from the language the General Assembly chose, either as defined by the General Assembly or as it would ordinarily be understood in the given context." Ballinger v. Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015). KRS 61.805(1) provides that "'meeting' means all gatherings of every kind, including video teleconferences, regardless of where the meeting is held." The definition of "meeting" expressly includes video teleconferences, and expressly states that it is "regardless of where the meeting is held." KRS 61.805(5) further defines "video teleconference" as "one (1) meeting, occurring in two (2) or more locations, where individuals can see and hear each other by means of video and audio equipment." KRS 61.805(5) does not define or require a primary location, but simply refers to meetings occurring in two or more locations through use of video and audio equipment. It makes no reference to the presence of a quorum at any particular locations, only the use of video and audio equipment.
"It is fundamental that in determining the meaning of a statute, we must defer to the language of the statute and are not at liberty to add or subtract from the legislative enactment or interpret it at variance from the language used." Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 56 (Ky. 2011). Since KRS 61.805(5) makes no reference to a quorum requirement, but only to a meeting in two or more locations by the use of video and audio equipment, we cannot add to the plain language of the statute. We cannot add quorum requirement to the statute, nor can we add any exception if only a few members participate by means of video teleconferencing. The definition of "video conferencing" by its plain terms encompasses all meetings occurring in multiple locations using video or audio equipment, and we are not at liberty to depart from it. 9
Accordingly, if a member of a public agency participates by video teleconference, the meeting is a video teleconference as defined in KRS 61.810(5), and the meeting is subject to the video teleconference provisions of KRS 61.826. In allowing members to participate by video teleconference, while going into closed session, and not complying with the additional notice requirements of KRS 61.826, the U of L Board violated the Open Meetings Act.
We recognize that our decision creates notable inconvenience for members of public agencies. However, such inconvenience must yield to the express language of the Open Meetings Act, and its policy that "the formation of public policy is public business and shall not be conducted in secret and the exceptions provided . . . shall be strictly construed." KRS 61.800. We do further note that this holding applies only to participation by teleconferencing members. A member may video teleconference into a meeting to listen and watch without participating, as in 13-OMD-118, without triggering the requirements of KRS 61.826.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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