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Kentucky Attorney General Daniel Cameron's December 5 open meetings decision evoked frustration, anger, and suspicion when it was announced yesterday, but the outcome is not altogether unexpected.…

Cameron determined that the Jefferson County Public Schools violated the open meetings law when it refused to admit a person not wearing a mask to the VanHoose Education Center to attend an August board meeting. The person also declined an on-site COVID-19 test as an alternative.…

The attorney general's open meetings decision is not the first time that the "conditions on attendance" relating to public meeting Covid restrictions question has been addressed in Kentucky. 

And the outcome, although controversial, was predictable. 

In June 2022, Campbell County Circuit Court ruled in Ken Moellman, et al. v. Campbell County Board of Education that the board violated the open meetings law by placing illegal conditions on attendance — in contravention of KRS 61.840 — at four of six challenged meetings conducted in August and September 2021.…;

The court found that Moellman was illegally excluded from board meetings that occurred on August 9 and August 20, 2021, and again on September 9 and September 20, 2021, because he refused to wear a mask — a condition on attendance other than one necessary for the maintenance of order — and ruled in his favor as to these meetings. 

The court ruled in favor of the board as to the other challenged meetings which occurred on August 16 and August 18, 2021. 

In an 11-page opinion, Judge Julie Reinhardt Ward framed the issue before the court as one testing whether the wearing of masks was necessary to maintain order per KRS 61.840.

That statute provides, in part:

“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.” 

The judge examined whether masks were necessary to maintain order. She concluded that the board presented no evidence that on the day of each meeting the crowd was so large that social distancing could not be maintained. Further, she found no evidence of danger to attendees for failing to wear masks.

Because there was no enforceable executive order or administrative regulation in place during the period in which the August 9, August 20, 2021, and September 9 and September 20, 2021, meetings were conducted, "There was no justification for the mask mandate at the meetings.”

With respect to these meetings, Judge Reinhardt Ward found the board’s violation willful, opining: 

“The Court finds the violation of the Open Meetings Act particularly egregious at the September 20, 2021 meeting, where there were no executive orders, emergency regulations, or injunctions in place which would require masks, and the board intended to vote on the boards COVID-19 Plan. The board, by requiring masks, barred attendance from the very individuals most likely to oppose passage of the COVID-19 Plan. This encumbrance can only be viewed as intentional.”

She awarded Moellman $100 for each violation — for a total of $400 — as well as attorney’s fees. Additionally, in an unusual step, she voided all actions taken by the board at the August 9, August 20, September 9, and September 20 meetings. 

Judge Reinhardt Ward ruled in favor of the board as to the challenged meetings that occurred on August 16 and August 18, 2021, based on a Franklin Circuit Court injunction on enforcement of legislation overriding executive orders during that period.

The Campbell County Board of Education did not appeal the court's opinion. 

There are currently no known statewide executive orders -- or legally enforceable restrictions -- in place addressing Covid in Kentucky.

The "conditions on attendance" statute is a double-edged sword. Arbitrary use of the statute to exclude public agency critics is a danger that has mostly been averted by applying a high standard on agencies to prove conditions so serious as to threaten the maintenance of order. (and prior open meetings decisions cited therein).

In the Campbell County case, the court focused on the size of the crowd and the availability of less restrictive alternatives, specifically social distancing. 

The same is true in the referenced open meetings decision from 2008. There, the attorney general concluded that less restrictive alternatives to removal of a "disruptive" attendee existed:

"No attempt was made to instruct him not to speak or to admonish him that he would be ejected if he continued to speak.  Under these circumstances, we believe that his conduct was not 'so disruptive as to impede public business,' and that less restrictive conditions may have been imposed, or at least attempted, before he was denied 'the virtually unconditional right' to remain in attendance at the meeting.  To hold otherwise would promote the arbitrary removal of members of the public without justification."

The Cameron team distinguished "conditions necessary for the maintenance of order" from "conditions necessary for the maintenance of health:

"KRS 61.840 does allow an agency to impose some conditions on attendance. However, those conditions must be 'required for the maintenance of order.' Therefore, the question is whether face masks, face shields, or medical tests are conditions 'required for the maintenance of order' within the meaning of KRS 61.840. The Board says that, at the time of the meeting, the community spread of Covid-19 in Jefferson County was 'high," according to the Centers for Disease Control and Prevention. According to the Board, '[k]eeping public meeting participants healthy and, as to the required JCPS-employee participants able to continue working post hearing free of illness, as the COVID-19 health crisis continues is the very essence of taking necessary steps to maintain order.' But the Board stretches the clear meaning of to 'maintain order' too far. A public health measure such as a requirement to wear a face mask or shield, or to submit to Covid testing, is intended for maintaining public health, but it has nothing to do with maintaining order."

The December 5 Attorney General's open meetings decision largely tracks the reasoning of the Campbell Circuit Court -- minus the existence of executive orders or regulations addressing Covid restrictions.

Does it break new legal ground? No. 

Does it affirm "the the virtually unconditional right" to attend a public meeting? Yes. 

Does it have the effect of placing the JCPS board, it staff, and other attendees at risk? Perhaps.

But the framers of the open meetings law did not envision a pandemic when they enacted the law in 1974.


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