00-OMD-169

00-OMD-169

September 6, 2000

In re: Jeffrey Haley/Paducah Board of Commissioners

Open Meetings Decision

        The question presented in this appeal is whether the Paducah Board of Commissioners violated KRS 61.840 in the course of its August 8, 2000, meeting by imposing conditions on the attendance of members of the public other than those required for the maintenance of order. For the reasons that follow, we find that the evidentiary record before us is insufficient to support the claimed violation.

On August 10, 2000, Jeffrey Haley submitted a written complaint to Mayor Albert Jones in which he alleged that the Paducah Board of Commissioners violated the Open Meetings Act at its August 8 meeting by refusing to allow him to address the board, and by “order[ing him] out of the [board’s] chamber under threat of physical removal or arrest.”  Mr. Haley further alleged that the chamber was “ordered cleared and entry was barred to the general public” in contravention of the Act. As a means of remedying the alleged violation, Mr. Haley proposed:

that all business discussed during this session be reintroduced during the next possible scheduled commission meeting and that a representative of Local 168 Paducah Professional Firefighters, FOP Lodge 15 Paducah Police Bargaining Unit, and myself be allowed to address the full commission.

In addition, Mr. Haley proposed that the Mayor and commissioners “issue a public apology to the citizens of Paducah . . . .”  

        In a response dated August 11, 2000, but apparently sent to the wrong address as a result of clerical error,¹ Mayor Jones denied that a violation of the Open Meetings Act had occurred in the course of the August 8 meeting. He explained:

Paducah Ordinance 2-143 obligates the presiding officer at a Commission meeting to preserve decorum and decide points of order. At Tuesday night’s meeting there was brought on for Commission action three final ordinances pertaining to the police and fire departments. When the ordinances were introduced numerous members of both departments began to leave the meeting while making disruptive comments. During the day many of these individuals had participated in a picket of City Hall.

Representatives of the police and fire department were told prior to the meeting that they would not be recognized to speak on collective bargaining issues. I explained my feelings that these matters should be negotiated in private, as they have been in the past.²  I, once again, at the commission meeting stated this. You, a candidate for Mayor and not a member of either department, sought to speak as the disruptive departure was in progress. As the presiding officer, I decided that with people standing, milling about, leaving and making various spontaneous comments that it was not an appropriate time for public comments. There was no need to inflame the situation. No member of the departments or their representative asked to speak. No member of the Commission asked for a ruling or point of order.

After the department members, and you, left the meeting there was even more commotion, a loud disturbance from the hallway, including the pounding on the walls of the chamber. Again, to preserve decorum, I asked a city employee to shut the doors to help keep out the noise. Shortly thereafter, many of those who had left made it to their vehicles and began blowing their car horns in a non-stop fashion.

The general public was not barred from entering the meeting, nor, was the press or others attending the meeting asked to leave. In fact, after you and the department members left the meeting, the business of our community was conducted openly and, despite the harassing noise from the outside, without interruption.

On this basis, Mayor Jones refused to implement the proposed remedial measures.

        Resolution of the legal issues in this appeal turns on an interpretation of KRS 61.840. 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 meeting. 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.

In construing this provision, the Attorney General has recognized, on at least two occasions, that KRS 61.840 vests members of the public with a virtually unconditional right to attend all meetings of a public agency. 94-ORD-45; 95-OMD-99. Conditions on attendance, such as residency in the city or county served by the public body (98-OMD-44), or a mandatory sign-in sheet (98-OMD-44; 00-OMD-63) have been held to contravene KRS 61.840.

Neither this provision, nor any other provision of the Open Meetings Act, has, however, been interpreted to invest the public with the right to participate, by means of public comment, in a public meeting. Thus, at page 3 of 95-OMD-99, we observed:

While members of the public have the statutory right to attend all public meetings and to observe with their eyes and ears what transpires at those meetings, the Open Meetings Act does not grant those persons the right to participate in the meeting and address during the meeting the members of the public agency.

Consistent with the public’s “concurrent right freely to express any approval or disapproval of any action or course about to be taken,” City of Lexington v. Davis, 310 Ky. 751, 221 S.W.2d 659, 661 (1945), we have nevertheless encouraged public agencies to adopt procedural rules that “include procedures permitting members of the public to address the public agency.”  95-OMD-99, p 3.

        Moreover, KRS 61.840 does authorize public agencies to impose conditions on attendance that are necessary for the maintenance of order. An examination of the decisions construing KRS 61.840 disclose none in which the issue on appeal arose from conditions imposed by the public agency for this purpose. From this, we must conclude that no member of the public has ever formally objected to measures taken by an agency to insure that order is maintained and that its meeting proceed without disruption.

        Attempting to apply these principles to the two disparate factual accounts presented by Mr. Haley and Mayor Jones poses a difficult task for the Attorney General. This difficulty is exacerbated by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The difficulties associated with this task extend to Mr. Haley’s allegation that the board chamber was ordered cleared and entry barred to the general public. The widely divergent factual accounts presented by the parties with regard to this charge, coupled with the absence of complaints to this office from others attending the meeting, or attempting to attend the meeting, compel us to conclude that the record is insufficient to support the claimed violation. Simply stated, we are not equipped to resolve this factual dispute in either party’s favor.

        Nor are we equipped to resolve the factual dispute relating to whether Mr. Haley voluntarily left or was forcibly removed from the meeting. See, e.g., 00-OMD-142 (issue of actual delivery of meeting notice to city commissioner is factual in nature, where agency maintained delivery was made and commissioner denied same, and Attorney General cannot resolve factual dispute in an open meetings appeal); see also 99-OMD-167 and 99-OMD-203. Given the inconsistencies in the written record, we again find insufficient evidence to support the claimed violation.

        Because resolution of Mr. Haley’s third allegation, relating to the board’s refusal to entertain public comment on collective bargaining issue, turns on the law and not the facts, we are equipped to resolve it. As noted above, the Open Meetings Act does not guarantee the public the right to address a public agency, such as the board, during a meeting of the body. See authorities cited above. Accordingly, we find no error in the Paducah Board of Commissioners’ decision to limit public comment on collective bargaining issues, and its consequent refusal to permit Mr. Haley to participate by means of public comment. While participation by public comment is strongly encouraged, it is not a right that can be enforced under the Open Meetings Act.

        A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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 proceedings.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#498

Distributed to:

Jeffrey Haley

521 North 7th Street

Paducah, KY 42001

Mayor Albert Jones

Mayor, City of Paducah

Paducah City Hall

300 South 5th Street

Paducah, KY 42002

W. David Denton

Paducah City Attorney

Denton & Keuler

P.O. Box 929

Paducah, KY 42002