Request By:
Mr. Arthur Hatterick, Jr.
Executive Director and Secretary
Kentucky Personnel Board
Room 372 - Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested a formal opinion of the Attorney General on the following questions:
1. Is the Personnel Board required to permit television coverage of the hearing of a personnel case under KRS 18A.095?
2. May the Board impose reasonable restrictions upon the activities of the camera crews in order to prevent disruption of the hearing?
3. May the Board limit the number of camera crews permitted within the hearing room and require that any tapings thus made be "pooled" or shared by other stations where representatives are present?
Answer to Question Number 1: There is no statute requiring the Board to permit television coverage of an appeal hearing.
KRS 18A.095(1) provides, inter alia, as follows:
Upon such review, both the appealing employee and the appointing authority whose action is reviewed shall have the right to be heard publicly and to be represented by counsel to present evidentiary facts.
Although the Personnel Board is an administrative body subject to the Kentucky Open Meetings Law, KRS 61.805 to 61.850, when it is hearing an appeal under KRS 18A.095 it is functioning as a quasi-judicial body. Judicial or quasi-judicial bodies are excluded from the definition of "public agency" under KRS 61.805(2). Thus, the provisions of the Open Meetings Law in KRS 61.840 regarding recording and broadcasting do not apply to the Personnel Board in its quasi-judicial function. As long as the Personnel Board does not act arbitrarily, but bases its decision on sound reason, it has the discretion to either permit or deny television broadcasting of an appeal hearing.
Court trials must be open to the public but the presiding judge has the discretion as to the permitting of television broadcasting and video recording during a trial. The Supreme Court has adopted "Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings, Appendix to Rule 4, Rules of the Supreme Court, pages 425-428, Kentucky Rules of Court (copy attached) . One of the provisions is that the media must make a request for coverage to the presiding judge. Another provision is that any "pooling" arrangements among the media required by the limitations on equipment and personnel shall be solely the responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover the proceeding; in the absence of advanced media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding. We believe that the chairman of the Personnel Board, with the approval of a majority of the Board, may play the same role as the presiding judge plays in a courtroom in regard to media coverage of a Personnel Board appeal hearing.
Answer to Question Number 2: The Board may impose reasonable restrictions upon the activities of the camera crew in order to prevent distruption of the hearing provided the Board prescribes the restrictions by administrative regulations as mandated by KRS 13A.100 which provides, in pertinent part, as follows:
"Subject to limitations and applicable statutes, any administrative body which is empowered to promulgate administrative regulations shall, by administrative regulation prescribe, consistent with applicable statutes:
* * *
(3) The procedures to be utilized by the administrative body in the conduct of hearings by or for the administrative body unless such procedures are prescribed by a statute; . . ."
KRS 13A.100 was enacted by the 1984 General Assembly and became effective on April 13, 1984. If the Personnel Board has not yet adopted administrative regulations on procedures to be utilized in the conduct of appeal hearings it should do so. When regulations are adopted they should include a regulation on allowing the electronic media access to its hearings. The Board could adopt the STANDARDS OF CONDUCT AND TECHNOLOGY GOVERNING ELECTRONIC MEDIA AND STILL PHOTOGRAPHY COVERAGE OF JUDICIAL PROCEEDINGS adopted by the Kentucky Supreme Court, by reference, or it could use the "standards" as a pattern for standards of its own or it may adopt different standards. We commend the standards of the court to the Board for consideration in adopting its own standards. (See copy attached) .
The Personnel Board should not handle the question of broadcasting by the electronic media on an ad hoc basis. Once administrative regulations are adopted all parties concerned should adhere to them.
Answer to Question No. 3: By regulation the Board may limit the number of camera crews permitted within the hearing room and require that any tapings thus made be "pooled" or shared by other stations where representatives are present. [The Standards of Conduct, etc., adopted by the Supreme Court, cited above, provide that not more than one portable television camera, operated by not more than one camera person, shall be permitted at any trial court proceeding].
In summary, the Personnel Board is not required to permit television coverage but may do so if it adopts administrative regulations so permitting and stating restrictions and procedures for such coverage.