How can we adapt Kentucky's open government laws to ensure that the first casualty in the war on coronavirus is not public agency transparency and accountability?

On Wednesday, we came face to face with the large scale impact of coronavirus on the delivery of public services.

Public universities announced that they were discontinuing classroom instruction in favor of online instruction. Governor Beshear urged public elementary and secondary schools to close their doors for two weeks and to reassess as information becomes available. Many have.

The courts closed for all purposes other than "emergency hearings" until April 10. And the General Assembly announced that it would suspend proceedings until March 17.

https://twitter.com/kyhousedems/status/1238234774516510722?s=12

In a late afternoon meeting on Thursday, Senator Stivers and Representative Osborne discussed options with the Governor that included an early conclusion to the 2020 Regular Session and closing the Capitol campus to "non-essential" personnel. That option would exclude the public from the Capitol and is currently disfavored.

Earlier in the week, the Kentucky Personnel Cabinet issued protocols for executive branch public employees that recommended telecommuting for executive branch employees and encouraged the use of "telephone and video conferencing instead of face-to-face meetings as much as possible," all "with a view toward protecting employees and their families while maintaining essential services to the public.

https://chfs.ky.gov/agencies/dph/covid19/stateemployeeprotocol.pdf

At the local level, Louisville today announced a Metro Council "virtual meeting" and a "virtual town hall" to reduce the risk of transmission of the virus. Characterizing it as an "experiment," the details were not disclosed.

Also today, Lexington's public libraries announced that they would close until April 6.

Transparency and accountability has never been more important. The Beshear administration has made a commitment to keeping the public informed about the health crisis now upon us through regular briefings and proactive release of data.

But routine public business must continue uninterrupted, and public agencies' legal obligations under open government laws must be observed to the extent possible.

Unlike some states, Virginia for example, our laws do not address compliance with open meetings requirements in cases where an emergency has been declared.

Where an "emergency which prevents compliance" with the open meetings law exists, KRS 61.823(5) requires an agency to "make a reasonable effort, under emergency circumstances," to comply with special meeting notice requirements and to limit discussions and actions at the meeting "to the emergency for which the meeting is called."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23047

There is, however, a provision of the open meetings law that facilitates continued access to meetings while we cope with this health crisis.

KRS 61.826 authorizes a public agency to "conduct any meeting through [a] video teleconference" that complies with regular or special meeting notice requirements; that identifies a primary location of the video teleconference where all members can be seen and heard and the public can attend; and that is suspended if there is "any interruption in the video or audio broadcast . . . until the broadcast is restored."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=47297

KRS 61.826 was hastily amended in 2018 to remove a section prohibiting closed sessions at video teleconferenced meetings. The prohibition on closed sessions no longer remains, but the language of the statute was otherwise badly mangled.

For now, it may have to do. The requirement of a primary meeting site where "the public may attend" poses the greatest challenge. The goal is to eliminate the risk of transmission of the virus. But exclusion of members of the public may result in a legal challenge.

There being no other known options, public agencies must commit to strict compliance with open meetings requirements relating to the existence of a quorum, meeting notice, open and closed session discussions, minutes, and taking action.

It is critical that — if agencies choose to proceed under KRS 61.826 — they ensure that the public can access the video teleconference and that "all members of the public agency can be seen and heard" in the transmission.

Ohio's Attorney General, Dave Yost, today issued a letter to local officials in which he attempted to reconcile Ohio's open meetings law with the exigencies of the coronavirus. General Yost emphasized that "access to the business of Ohio's public bodies is still vital" and urged compliance with the requirements of Ohio's law.

Also today, the Tennessee Coalition for Open Government posted an analysis of the challenges to the preservation of transparency this health crisis poses.

Executive Director Deborah Fisher wrote, "Communications technology has truly transformed our society. The tools may exist to preserve transparency in an emergency. But getting these tools into the hands of governing bodies who need them may take some help from the public." Especially, she noted, for smaller communities that do not currently possess the technology.

Iowa's Public Information Board issued a press release yesterday in which it offered guidance for electronically conducted public meetings. The letter emphasized the importance of public participation by live feed or personal attendance.

The common thread in each of these guidance documents is that suspension of the open meetings laws is not an option. Each state acknowledges that it must continue to observe the laws' requirements.

We urge Louisville Metro, and any other state or local agency contemplating a "virtual meeting," to organize those meetings around the requirements of the open meetings law.

The framers of Kentucky's open meetings laws did not envision a crisis of this magnitude when they secured passage of the laws in the mid-70s. But the laws are adaptable to the challenge we face.

We should commit to ensuring "open government, openly arrived at" at the same time that we implement measures to protect the public, public officials, and public employees from the spread of coronavirus.

There's no need — and no legal authority — for abandoning one to the other.