Question of the day: Can a public agency lawfully remove a disruptive attendee from a public meeting?

Events at last night's Jefferson County Public School's board meeting prompt this question.

One of the most rarely interpreted provisions of the open meetings law states that "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, including adequate space, seating, and acoustics, 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."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=42577

Legal challenges under this statute most often arise in the context of a mandatory agency sign-in sheet — conditioning the public's attendance on identifying themselves — an agency's refusal to permit a member of the public to record a meeting, and an agency's failure to provide adequate space, seating, and acoustics to permit effective public observation.

Four decades of interpretation of the open meetings law have resolved these questions in favor of the public's right to refuse to sign in, the public's right to record a public meeting, and the agency's duty to ensure the public's ability to see and hear what transpires at the public meeting.

In a handful of appeals, the Attorney General has been asked to determine if an agency violated KRS 61.840 by ejecting an attendee from a public meeting. In each of these appeals, the dispute focused on whether the attendees continued presence threatened the maintenance of order and was "so disruptive as to impede public business."

https://ag.ky.gov/Priorities/Government-Transparency/orom/2008/08OMD249…

https://ag.ky.gov/Priorities/Government-Transparency/orom/2014/14OMD022…

The Attorney General determined that "'KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency' and that 'less restrictive conditions' than removal from the meeting should be imposed in all but the most egregious cases."

"To hold otherwise," the Attorney General concluded, "would promote the arbitrary removal of members of the public without justification."

The question of the propriety of JCPS's removal of attendees at last night's board meeting turns on its facts. If the attendees' conduct impeded public business — and no "less restrictive alternatives" to removal existed — removal may have been a measure "necessary for the maintenance of order."

That will be for the Attorney General — or the courts — to decide if a legal challenge is raised.