Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Crescent Springs violated the Open Meetings Act in requiring persons attending city council meetings to state whether they reside in Crescent Springs as a condition to being permitted to view council meetings from within council chambers, and excluding nonresidents from the chambers. For the reasons set forth below, we hold that this practice violated KRS 61.840, but that this violation is mitigated by the city's desire to permit the greatest possible public participation by Crescent Springs residents and its corollary duty to maintain order.
On January 20, 1998, Christie Arlinghaus-Clem submitted an open meetings complaint to City of Crescent Springs Mayor Ken Robinson. In her complaint, Ms. Arlinghaus-Clem alleged, among other things, that the stated practice violates KRS 61.840, and requested that the city declare its January 7, 1998, special meeting and its January 12, 1998, regular meeting void. In addition, she requested that the city "redo" its action "at a meeting where the public can be present and effectively participate." On January 23, 1998, the City of Crescent Springs, through its attorney, David A. Schneider, issued a written response to Ms. Arlinghaus-Clem's complaint, denying that any violation of the Open Meetings Act had occurred, and rejecting the proposed remedial measures. Mr. Schneider explained:
No one was required to identify himself as to name or address. Those not recognized were simply asked if they were residents of Crescent Springs, and if they were, then they were directed to the council chambers. If they were not, they were asked to observe from the monitor in the adjoining conference room. The purpose was to afford Crescent Springs residents the opportunity to address council, even though the Act does not require the public to have an opportunity to speak at public meetings.
Dissatisfied with Mr. Schneider's explanation, Ms. Arlinghaus-Clem initiated this appeal.
In a follow-up letter to this office, Mr. Schneider elaborated on the city's position. He stated that beginning in November, 1997, large numbers of people began attending council meetings, and that various measures were employed to cope with the problem of overcrowding. The city settled on the practice of setting up auxiliary rooms for public observation via television monitors. Mr. Schneider reaffirmed that:
No one was asked their name or required to show any identification. Directions were given at the door by police to give priority for seating in counsel [sic] chambers to Crescent Springs residents, since only Crescent Springs residents were again being given the opportunity to address council. This was done in the interest of establishing a reasonable length of the council meeting so that all items on the agenda could be addressed. At the January 12, 1997 regular council meeting, no one was excluded from observing the council meeting and the adjoining conference room with the TV monitor was less than half full.
In closing, Mr. Schneider questioned "how crowd control measures to allow Crescent Springs residents this opportunity to speak to council," could be attacked as a violation of the Open Meetings Law.
We begin by nothing that the city complied in almost all material respects with the requirements of KRS 61.840 in the conduct of its public meetings. That statute provides:
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 meetings. All agencies shall provide meeting room conditions 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.
The Attorney General has recognized that a public agency does not violate this provision "merely because everyone at a particular meeting could not be admitted into the meeting room. " 94-OMD-87, p. 3, 4. Where the meeting is held in a room which would normally accommodate all those desiring to attend, and the public agency makes arrangements to permit the overflow crowd to view the meeting from another room by means of television monitors, the agency fully complies with the law. 94-OMD-87, citing Gutierrez v. City of Albuquerque, 96 N.M. 398, 631 P.2d 304 (1981); compare 97-OMD-28 (where public agency made no attempt to deal with overflow crowd and to control the noise level at its public meeting, it violated KRS 61.840 by failing to provide meeting room conditions which insofar as is feasible allow effective public observation of the meeting).
Moreover, despite the fact that "the Open Meetings Act does not grant [members of the public] the right to participate in the meeting and address during the meeting the members of the public agency, " 95-OMD-99, p. 2, the City of Crescent Springs made a laudable effort to afford city residents in attendance an opportunity to participate and address the members of the council. The problem lies in the mechanism for permitting public participation, and at the same time preserving order, which the city employed.
Nevertheless, KRS 61.840 clearly 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. " (Emphasis added.) The statute further provides that "no person may be required to identify himself in order to attend any such meeting." While we applaud the city's efforts to ensure that residents of Crescent Springs are afforded an opportunity to participate, we believe that its practice of giving preferential seating to those residents places a condition upon attendance at its meetings in contravention of KRS 61.840. The term "condition" is variously defined as" a prerequisite. . . . a qualification, " The American Heritage Dictionary , 182 (3<rd> ed. 1994), and as "something indispensable to the . . . occurrence of something else." Webster's II New Riverside University Dictionary , 294 (2<nd> ed. 1988). Under the city's practice, residency in the City of Crescent Springs is a condition, or prerequisite, of attendance. Although no one wishing to attend is entirely excluded from the meeting, only those persons who satisfy the residency qualification are seated in the council chambers. Residence in Crescent Springs is thus indispensable to being permitted to observe the meeting in person rather than by television monitor. This practice was condemned in OAG 92-146. There, the Attorney General held that:
As a general rule a public meeting of a public body is either open to everyone under the Open Meetings Act or closed to everyone under a statutorily recognized exception to the Open Meetings Act. There is no principle of selective admission set forth in the Open Meetings Act.
OAG 92-146, p. 4. We affirm that view today.
In addition, we note that a person's place of residence is, in itself, a personal identifier. Although this item of information, standing alone, reveals little about that person, we believe that the city's practice also contravenes KRS 61.840 by impermissibly requiring person who attend its meetings to provide identifying information. The City of Crescent Springs should immediately discontinue this practice.
We hasten to note that these violations of KRS 61.840 are mitigated by the city's desire to permit public participation while maintaining order. Clearly, the statute envisions that some conditions on attendance may be required for the maintenance of order. We believe that the better practice, given the need to maintain order and to allow effective public observation, is to provide seating on a first come first served basis, and to then develop procedural rules governing the conduct of council meetings, which, it is hoped, will include procedures for permitting members of the public to address the council. 95-OMD-99; OAG 78-522. In the latter opinion, this office observed:
The state legislature has not dictated to the various classes of cities procedural rules relating to the conduct of meetings, and as a consequence, each legislative body must adopt its own rules of procedure. Many cities adopt those rules promulgated in Robert's Rules of Order or some other manual of legislative procedure such as Mason's for the orderly conduct of their meetings.
OAG 78-522, p. 2. The City of Crescent Springs should bear these observations in mind in developing rules governing the conduct of its meetings.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a) and KRS 61.848(2). Pursuant to KRS 61.846(5), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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Distributed to:
Christie Arlinghaus-Clem909 Squire Hill CourtCrescent Springs KY 41017
David A. SchneiderZiegler & Schneider, PSC200 Covington Mutual Building629 Madison AvenueCovington KY 41011
Mayor Ken RobinsonCity of Crescent Springs739 Buttermilk PikeCrescent Springs KY 41017