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 Kentucky Board of Emergency Medical Services violated KRS 61.840 by conducting its January 4, 2001, meeting in the Public Health Auditorium of the Human Resources Building, a secure state facility at which visitor registration is required. Absent proof that the Board instructed the security officers attached to the Human Resources Building to require identification as a condition of attendance at the meeting, we find no violation.
On January 10, 2001, Jay Reeves submitted an open meetings complaint to Kentucky Board of Emergency Medical Services' Executive Director, Brian Bishop. In his complaint, Mr. Reeves alleged that he was required to sign a visitors log before entering the Human Resources Building to attend the Board's January 4 meeting in contravention of KRS 61.840. He indicated that the security officer on duty advised him that if he did not register, he "would not be allowed to enter, thus denying [him] access to the meeting." As a means of remedying the alleged violation of KRS 61.840, Mr. Reeves proposed that future meetings of the Kentucky Board of Emergency Medical Services "be held in a facility that does not have in place impediments to the public's attendance. "
In a response dated January 17, 2001, 1 Patricia Bausch, Interim General Counsel to the Board, denied that a violation of the Open Meetings Act occurred at the January 4 meeting. She explained:
As background, the meeting about which you complain was held in the auditorium of the Cabinet for Human Resources 2 in Frankfort, Kentucky on January 4, 2001. As you note in your letter, the facility management of CHS requires all visitors to sign in before being permitted to visit any area of that building. Based upon your statements, it appears no identification is required by CHS in order to receive a "Visitor" pass. Furthermore, it is my understanding the Department of Facilities Management has created this process to protect the safety of the persons within the building, the employees and the visitors.
Obviously KBEMS has no authority to dictate to the Department for Facilities Management for CHS its procedures as it concerns identification of visitors who come into the CHS building. As you know, the requirements of the front desk at CHS are wholly unrelated to KBEMS and, thus, the Board would have no authority whatsoever to seek any variance of CHS rules/procedures as it concerns meetings of the Board.
With reference to the statute the Board allegedly violated, Ms. Bausch observed:
[C]ommon sense would tend to suggest that another public entity that chooses to control visitors based upon public safety issues would be a condition placed upon the maintenance of order due. Again, as you and I discussed and agreed, the Board placed no condition for attendance upon anyone wishing to attend the KBEMS meeting on January 4, 2001 or at any time.
As we also discussed, before the meeting in question was scheduled to be held in the CHS building, KBEMS was unable to locate any other facility in which to hold a meeting. Reservations had been made for a room in the Capital Annex, but the reservation was canceled to allow use by the legislature. For the next several months, there will continue to be no meeting space in the Annex until the upcoming session ends.
Ms. Bausch encouraged Mr. Reeves to propose alternative meeting sites capable of accommodating approximately 116 people, noting that the Board had been unable to locate any facilities that did not require visitor identification for groups of this size. In closing, she reaffirmed the Board's commitment to unconditional access to its meetings, and her belief that no violation of the Open Meetings Act occurred "in the process of . . . identifying visitors in the CHS Building on January 4, 2001." 3
On appeal, Mr. Reeves asserts that "the necessity of having to sign a visitor log in order to attend an open meeting is a violation of KRS 61.840." The Board responds that the location in dispute "is a public facility that is used regularly for public meetings, including meetings for public comment for all regulations promulgated on behalf of the Cabinet . . . [and that] Mr. Reeves' concerns about forced identification in order to attend an Open Meeting of the Kentucky Board of Emergency Medical Services are truly unfounded . . . ." Because the record is devoid of proof that identification requirements were imposed on meeting attendees at the prompting, or on demand, of the Board of Emergency Medical Services, we affirm the Board's position. Having said this, we nevertheless urge the Board to continue to investigate in order to locate alternative meeting sites inasmuch as the better practice is to conduct meetings in a public building where no registration policy exists.
Resolution of the issue in this appeal turns on an interpretation of the scope 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 98-OMD-44, this office condemned the practice of requiring attendees to indicate their city of residence for purposes of providing preferential seating in council chambers to those attendees who resided in the area affected by the subject matter of the city council meeting. Although the attendees were not required to identify themselves by name or address, we nevertheless held that the agency's practice contravened KRS 61.840 "by impermissibly requiring persons who attend its meetings to provide identifying information." 98-OMD-44, p. 4. The Attorney General noted that although a person's city of residence, standing alone, reveals little about the person, it is, nevertheless, a personal identifier proscribed by KRS 61.840. In a subsequent decision, we held that a sign-in sheet at the entrance of a fiscal court's meeting room, which the fiscal court required attendees to sign "as an apparent, if not actual, precondition to attending the meeting," abridged the rights of persons attending to do so without identifying themselves. 00-OMD-63, p. 7. In both instances, the registration requirements was imposed by the agency conducting the meeting and applied to its own meeting room facilities.
This is not the case in the appeal before us. Ms. Bausch affirmatively states that "the requirements of the front desk at CHS are wholly unrelated to KBEMS, and, thus, the Board would have no authority whatsoever to seek any variance of CHS rules/procedures as it concerns meetings of the Board." Her position finds support in the statements of Commissioner Armond Russ, Department of Facilities Management, who, in a conversation with the undersigned conducted on February 1, 2001, confirmed that there was "no intent to screen people for this meeting." Instead, Commissioner Russ indicated, visitors are screened at all secure facilities in state government as the facilities make the transition to an enhanced security system. Implementation of the system was prompted by public safety concerns, and was not intended to deter public access to meetings or hearings held in these facilities generally, or in this particular instance.
Our decision turns on Ms. Bausch's statement that the Board of Emergency Medical Services did not direct the security officer attached to the Human Resource Building to require meeting attendees to sign-in as a condition to attending the Board's meeting, and could not compel the officer to waive the requirement for attendees. Simply stated, the Board did not intend to abridge the rights of the attendees, and had no reasonable alternative by which to avoid this controversy. There is no proof of an attempt to inhibit public access to its meeting by imposing conditions on attendance or requiring identification. If reasonable alternatives exist, they should, of course, be exercised. As noted above, the better practice under the Open Meetings Act is to locate a meeting room in a building where no registration requirement has been implemented. The Board accedes to this view, and suggests its willingness to consider suitable meeting sites that Mr. Reeves proposes. As for its January 4 meeting, it is our opinion that the Board presents credible evidence to support its assertion that no alternative meeting site could be located. We therefore find that the Board did not violate KRS 61.040 at that meeting.
This holding should not be construed as a retreat from the rule of law that no conditions on attendance at a public meeting can be imposed other than those necessary for the maintenance of order, and that no person may be required to identify himself in order to attend a meeting. It is limited to those rare cases in which the public agency whose actions are challenged must conduct its meetings in a secure public facility at which visitor registration is required for the purpose of insuring public safety, and not for the purpose of inhibiting public access to those 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). 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.
Jay Reeves1802 Deer Park AvenueLouisville, KY 40205-1224
Brian BishopExecutive DirectorKentucky Board of Emergency Medical Services275 East Main StreetFrankfort, KY 40621
Patricia BauschSturgill, Turner, Barker & Moloney155 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 Anticipating the argument that her response was untimely, Ms. Bausch indicated that Mr. Reeves' complaint was postmarked January 12, 2001, and received on January 16, 2001.
2 The building at which the meeting was conducted is actually designated the Human Resources Building. This fact obviously has no bearing on the outcome of Mr. Reeves' appeal.
3 Ms. Bausch reasoned, in part, that since visitors were not required to state their destination, "there is no public record that would establish which visitors attended the meeting and which did not." In subsequent correspondence, Mr. Reeves disputes this assertion, stating that he was required to wear a visitor's identification badge containing his name, and the initials "EMS." Because this issue was not raised in Mr. Reeves complaint, or original letter of appeal, it is not ripe for review by this office. We do, however, note that the reasoning we apply to the visitor registration policy at the Human Resources Building would apply with equal force to a visitor identification and destination badge if no proof exists that the Board imposed this requirement.
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