The Kentucky Open Government Coalition is grateful to the Murray Ledger & Times for recognizing that the coalition — admittedly not an “influencer” in debates on public policy issues relating to transparency in government — advanced an opposing view on HB 453 long before the Governor signed that bill into law on March 25.
HB 453 codifies the right of public agencies to conduct public meetings by “video teleconference” — as that term has appeared in the open meetings law since 1994 — as an alternative to in-person meetings. The term was/is fortuitously defined 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.”
It is important to remember that what we treat as “video teleconferencing” in 2022 bears no resemblance to the “video teleconferencing” that was established at KRS 61.826 in 1994:
• “Video teleconferencing” was introduced into the open meetings law in 1994 — long before “virtual” meetings were imagined — to promote broad public participation by conducting an in-person meeting at one location with various “video teleconference” sites across the state where the public could “attend” without traveling to the in-person meeting site. It was intended to expand public participation and to enhance the public’s convenience. No closed sessions were permitted at videos teleconferenced meetings.
• “Video teleconferencing” was co-opted — some would say bastardized — in 2018 to authorize “remote participation” by individual public officials who, for whatever reason, could not, or did not wish to, attend the in-person meeting(s) of the agency they serve. For their own — rather than the public’s — convenience, these officials successfully agitated to eliminate the “no closed sessions” provision in the original 1994 law — the only legal impediment to unrestricted use of “remote” participation. Ignoring the original meaning and purpose of KRS 61.826, they did so for their own convenience at the expense of the intent of the original law and the law’s preference for in-person meetings.
• The “Video teleconferencing” statute was temporarily modified to address public health concerns in 2020. Under those temporary revisions, public agencies were permitted to conduct “virtual” meetings — in the guise of “video teleconferenced” meetings — on a broad scale. Some safeguards — not nearly enough for permanent codification — were put in place. These modifications were, again, temporary and not intended to permanently shift the preference away from in-person meetings.
The knowledge and expertise
that public agencies gained in conducting “virtual” meetings in succeeding months — albeit still imperfect — has been parlayed in other states into permanent laws enshrining permanent hybrid meetings and requiring in-person meetings that are simultaneously live-streamed.
On Thursday, for example, the Tennessee legislature considered a bill that originally required agency members to attend 50% of all meetings in-person — on pain of removal — and the posting of a video of the meeting on the agency website no later than three days after the meeting.
The Open Government Coalition opposed Kentucky’s HB 453 permanent codification of “video teleconferencing” — not on its “face” — but as an option to in-person meetings at the agency’s discretion, the inevitable shift away from the in-person meetings preference, and the lack of adequate safeguards aim at preserving existing public rights.
“Facially innocuous,” we have pointed out on multiple occasions, HB 453 opens the door to widespread agency abuse. We opposed it because our legislature never even considered the infinitely preferable “hybrid” meeting option.
Finally, we opposed it because it creates two new open meetings exceptions. That fact alone would have sparked opposition in past legislative sessions.
It does not — as we maintained from the earliest days of its introduction — promote transparency. Kentuckians who care about open government will likely regret its enactment.
The Murray Ledger & Times writes:
“Gov. Andy Beshear recently signed House Bill 453, which amends portions of, what is commonly known as, the Kentucky Open Meetings Act. The majority of the changes were inspired by temporary changes made to accommodate mitigation strategies related to COVID-19 and are related to ‘video teleconference’ meetings.
“Effective July 1, any public agency choosing to hold a public meeting via video teleconference, such as through Zoom or Skype, must specifically outline how a member of the public may join the meeting electronically – in other words, agencies must inform the public as to how to access the link to the meeting. In addition, any members of a public agency attending a meeting via video teleconference must remain visible on camera at all times.
“* Agencies are still required to advise the public of the primary physical location of the meeting, but the statute was amended to include ‘any circumstance where two or more members of the public agency are attending a video teleconference meeting from the same physical location.’
“*In the event a regular meeting is changed to a video teleconference, the meeting remains classified as a regular meeting provided that the date and time are the same as originally scheduled.
“* Previously, meetings relating to the selection of a successful bidder on state contract were considered an exception to the KOMA and could be discussed in closed session. Now, local contracts also fall under this exception.
“Government transparency advocates had mixed responses to the legislation. Kentucky Press Association President David Thompson acknowledged that the pandemic fundamentally changed how public meetings were held and HB 453 was an attempt to recognize that. KPA worked with the Kentucky League of Cities on the language of the bill to ‘make sure that these meetings are held as strict to guidelines as possible and not just free-will sessions that are done without compliance with the state law,’ Thompson said in an email.
“Jon Fleischaker, KPA attorney and an author of the original Open Meetings Act (1974) and KY Open Records Act (1976), voiced concern with the potential for officials to avoid public scrutiny by hiding behind a technological veil. ‘The problem that we’re having is that, because of the pandemic, it became normal to have (virtual) meetings. People got used to it,’ he said. ‘With Zoom, you can hear what people say and you can watch them, but it changes the whole dynamic. It’s not like being at a meeting.’
“‘People have a right to be there to see how people react, to see what their facial reactions are, to see what the dynamics are at a meeting. I think there was a good-faith effort across the commonwealth – though, not in all cases – to use Zoom meetings to have better outreach to the public. It depends on how it is used. If it’s used to try to actively avoid public participation, meaning public attendance at a meeting, they are violating the law.’
“The Kentucky Open Government Coalition was critical of the legislation to the point of sending Gov. Andy Beshear a veto request. It took issue with the new exceptions included in the bill, one mentioned above and another related to city managers.
“The Coalition also expressed disappointment in the bill’s failure to codify a hybrid model wherein agencies would be required to conduct meetings both in-person and via video teleconferencing, instead leaving the meeting format, essentially, optional.
“‘It abridges the public’s right to make its collective “voice”
heard in face-to-face interaction with its elected and appointed officials by authorizing those officials, without limitation, to erect barriers to the public’s ability to hold them accountable in person. … Hybrid meetings promote the broadest possible public participation, but the hybrid option has not been considered by the General Assembly,’ the request stated.
“The Coalition suggested numerous ‘guardrails’ that could have been adopted in the legislation that, it believes, would have strengthened it, including maintaining a dedicated phone line so that the public can report disruptions in the feed, ensuring that visual aids are equally visible to online participants and taking steps to ensure agency member do not communicate by text or email during a meeting.
“‘If it's clearly open to the public so that the public sees exactly what the chair of the board sees, that, at least, minimizes the possibility for shenanigans. There’s always going to be people trying to do things that are questionable. They'll use their cell phones to do it; they will text; they will send emails; but that can happen in a regular public meeting,’ Fleischaker said.”
The Coalition remains unconvinced that sufficient safeguards exist to discourage abuse or that indiscriminate use of “video teleconferenced/virtual” meetings to avoid public participation will be treated as a violation of the Kentucky open meetings law since. After the effective date of HB 453, the open meetings law legalizes the practice without restriction. What provision of the open meetings law will public agencies violate if they choose to conduct all public meetings behind the electronic barrier that “virtual” meetings erect?