03-OMD-178 | KOGC

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 Spencer County Board of Education violated the Open Meetings Act at the June 6, 2003 public hearing arising from the demotion of Spencer County Elementary School Principal Dale Kleinjan. 1 For the reasons that follow, we find that although the conflicting evidentiary record precludes us from resolving the claimed violation of KRS 61.840, requiring public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings," the record supports the claimed violation of KRS 61.810(1), providing that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times . . . ."

On June 21, 2003, Thomas S. Watson submitted a written complaint to Vicki Goodlett, Chairperson of the Spencer County Board of Education, in which he alleged:

The board was seated at 6 p.m., which is the time designated for the meeting to begin in a notice given to John Shindlebower, editor of the Spencer Magnet newspaper, Taylorsville, Ky. At 6:05 p.m., the board left the room and did not return for 45 minutes. No notice was given to those present, including the media, as to why the unauthorized private meeting was called.

I was told by Mr. Kleinjan that he was given the option of a closed or open meeting since a personnel matter concerning himself was to be discussed. Kleinjan said he asked for an open meeting, which meant the board was waving [sic] the exemption to the state Open Meetings Act that allows a personnel matter to be discussed in a closed session.

The board additionally did not provide for effective public observation of the meeting. There was no public address system and those speaking could seldom be heard.

As a means of remedying the alleged violation, Mr. Watson proposed that "all action taken at the June 6, 2003 meeting be declared null and void" and that a new meeting be scheduled and properly conducted.

In a letter dated June 26, 2003, Robert L. Chenoweth and John C. Fogle, III, "regular legal counsel for the Spencer County Schools," responded to Mr. Watson's complaint on behalf of Ms. Goodlett, denying each of the allegations in the complaint and the proposed remedy. They explained:

[T]he fact the statutory hearing procedure did not commence at the time noticed does not give rise to a violation or serve as grounds to void the individual adjudication involved. Larry Bryson, Esq., was retained as counsel to the Board of Education of Spencer County to serve as hearing advisor in conjunction with the KRS 161.765 hearing. Mr. Bryson arrived at the hearing site later than anticipated which prevented consultation with the Board Chairperson or members of the Board as to procedural matters attendant to the hearing prior to the actual commencement of the meeting with the Board. Mr. Bryson advised Mr. Kleinjan's counsel and counsel for the school administration, of the nature of the prehearing conference with the Board, i.e., a lawyer/client conference for the purpose of covering applicable statutory procedures. The delay in starting time of a quasi-judicial adversary proceeding to allow for a lawyer/client conference does not give rise to an Open Meetings Act violation.

Nor did such conference constitute an "unauthorized meeting" as intimated in your letter. Mr. Bryson was retained to render legal advice to the Board regarding the hearing procedures. Under Kentucky Rule of Evidence 503 as formerly codified in KRS 422A.503, the procedural overview given by Mr. Bryson as legal advisor is confidential, no action was taken, and the conference with members of the Board accordingly did not constitute a meeting "at which any public business is discussed or at which any action is taken by the public agency . . . ." See KRS 61.810(1).

Additionally, pursuant to KRS 61.815(2), the activities of public agencies identified in KRS 61.810(1)(c) (relating to discussions of proposed or pending litigation against or on behalf of the public agency) and KRS 61.810(1)(k) (relating to meetings which federal or state law specifically require to be conducted in privacy) are excluded from the requirements of KRS 61.815(1) which covers the conditions for conducting closed sessions. With respect to the former, once an administrator who has been demoted by the superintendent answers the grounds for demotion, the demotion procedure becomes adversarial administrative litigation and the board, consisting of lay persons, may receive legal advice regarding hearing procedures under the "litigation" exception. Alternatively, the session with Mr. Bryson did not constitute an "unauthorized private meeting" since it consisted of communication between attorney and client made in conference while the attorney was acting in a legal capacity and such advice (here, concerning applicable hearing procedures) related to the purpose of the legal representation. The codified lawyer/client privilege accordingly applied pursuant to KRS 61.810(1)(k).

Messrs. Chenoweth and Fogle emphasized that Mr. Kleinjan's request for a public hearing did not abrogate the Board's right "as a quasi-judicial hearing body to receive confidential legal advice relating to hearing procedures."

Turning to the second allegation in Mr. Watson's complaint, Messrs. Chenoweth and Fogle asserted that "the hearing procedure comported with the 'meeting room conditions' standards set forth in KRS 61.840." They observed:

The hearing was conducted in the library of the Spencer County High School. The room was configured with the Board members, hearing officer, and witnesses facing the audience, with counsel tables facing the Board.

. . .

Ms. Goodlett advises that the high school library was chosen as the hearing site and serves as the usual site for Board meetings since it has superior acoustics when compared to other rooms which have been utilized for Board meetings. Ms. Goodlett additionally advises that she was not personally approached by any person in attendance regarding an inability to hear the proceedings.

The hearing proceeding did not present an overflow crowd where those who desired to attend could not enter the room. The room was configured insofar as was feasible to permit effective observation of the meeting and notwithstanding the lack of a public address system, . . . the site supervisor had no difficulty hearing the proceedings from the back of the room. Further, neither the site supervisor nor the presiding officer was approached by those in attendance regarding that issue. Given the above, the meeting room conditions did not violate KRS 61.840 and there is certainly no basis for voiding the action of the Board as relates to this individual adjudication.

Additionally, Messrs. Chenoweth and Fogle referenced an email from Robert DeHoag, Principal of Spencer County High School, to Ms. Goodlett in which he confirmed that additional chairs were provided to audience members who wished to be seated, that he was seated in the back of the room and "did not encounter any difficulty hearing the attorneys or witnesses," and that no one approached him in the course of the evening to make comments or express concerns about the meeting room. On these bases, they maintained that there is "no basis for voiding the action of the Board as relates to this individual adjudication."

On appeal, Mr. Watson again questions the adequacy of the meeting room conditions 2 and the unauthorized private meeting. In addition, he questions whether "the Board's offer to Mr. Kleinjan of having an open meeting if he wanted one will stand the scrutiny of the Open Meetings Act" or portions of the Act can be waived by the parties; whether the Board properly took final action in closed session; and whether the Board properly took breaks "for as long as 15 minutes without voting to go into executive session. " Because the latter issues were not presented to Ms. Goodlett in his original open meetings complaint, we are foreclosed from addressing these issues except to the extent that they are indirectly implicated by issues Mr. Watson properly raised in that complaint. 3

In supplemental correspondence directed to this office following commencement of Mr. Watson's appeal, Mr. Chenoweth elaborated on the Board's position. With reference to Mr. Watson's allegations concerning the "conference between the Board and Mr. Bryson," he again asserted that "no Open Meetings Act violation occurred," observing:

Certainly if each member of the Board signed-up for and attended a training session presented by the Attorney General's office on being a hearing officer or conducting a hearing, there would be no contention the gathering of the Board members in that one place to receive training would be a "meeting" of the Board subject to the requirements of KRS 61.800 et seq. The Board did not discuss any public business or take any final action during the training session conducted prior to the hearing on June 6. Mr. Bryson merely took the time necessary to advise the Board of the format and procedural requirements of a hearing designed to provide due process to an individual whose employment status was at issue. Even if the Attorney General finds the Board's session with counsel constituted a "meeting" under the Act, it is submitted the meeting would have clearly fallen within the exceptions listed at KRS 61.810. In Jefferson County Bd. Of Educ. v. Courier-Journal, Ky.App., 551 S.W.2d 25 (1977), the Kentucky Court of Appeals found that the notice requirement under the Act does not apply to an executive session of a public agency intended to offer a board an opportunity to confer with their attorneys concerning proposed or pending litigation. As the Board has not been sued by Mr. Kleinjan concerning the outcome of the hearing, there can be no dispute that the Board's consultation with Mr. Bryson, pre-hearing, was legitimately in anticipation of litigation. The Board needed to receive advice on how to conduct the hearing procedurally to avoid any allegation the process utilized would violate Mr. Kleinjan's due process rights. The Board's private training session with their counsel of record was necessary, was exempted from any notice requirements, and falls under a clear exception to the Open Meetings Act.

In sum, Mr. Chenoweth opined, Mr. Bryson's communications with the Board were excluded from the requirements of the Open Meetings Act notwithstanding the fact that they were made after the hearing's noticed start time.

With reference to Mr. Watson's allegation that the Board failed to provide meeting room conditions which allowed effective public observation, Mr. Chenoweth commented:

Mr. Watson also alleges that some individual members of the public could not hear the proceedings. Mr. Watson has estimated the crowd to be near 200 while the local newspaper "The Spencer Magnet" and the presiding officer of the Board both report attendance of approximately 100. Regardless, only Mr. Watson and the six individuals whose letters he has provided to the Attorney General's office have made any complaint regarding an inability to hear the proceedings. The other 93-193 members of the public present made no complaint . . . . Mr. Watson provides no evidence in his appeal that any member of the public voiced any concern to the presiding officer of the Board at any time during the meeting which lasted six (6) to eight (8) hours.

Seven members of a 100-200 member audience now report an inability to hearing the proceedings; but neither the site supervisor nor the presiding officer of the Board received any oral complaint during the 6-8 hour hearing of a lack of seating or general inability to hear. Mr. Watson is asking the Attorney General's office to believe that some 100-200 people sat quietly in a crowded library for 6-8 hours, extending into the wee hours of the morning, all the while being unable to hear or follow the proceedings . . . . If a great majority of the audience was unable to hear proceedings on an issue of obvious great public interest, a much larger outcry would have been heard during the hearing . . . Given the disparate nature of the factual account presented by Mr. Watson and that provided by the site supervisor and the presiding officer of the board, it is submitted the Attorney General's office has not been presented sufficient evidence to support any claimed violation regarding the conditions of the meeting room. As was the situation presented in 98-OMD-169, there is no obligation for a public agency to "fix" what they are not aware is "broken."

In light of these conflicting factual accounts, and the paucity of evidence that the Board was made aware that the hearing was inaudible, Mr. Chenoweth urged this office to acknowledge its inability to resolve the factual dispute or, alternatively, to resolve the issue in favor of the Board. 4

Having reviewed the record on appeal, we find that the private discussion between Mr. Bryson and a quorum of the members of the Spencer County Board of Education, during which he instructed the board members on "the formal and procedural requirements of a hearing designed to provide due process to an individual whose employment status was at issue," constituted a violation of KRS 61.810(1). However, because that record contains conflicting evidence relative to the meeting room conditions we are not equipped to resolve this issue and respectfully decline to do so.

To begin, we find that the gathering of a quorum of the members of the Spencer County Board of Education to discuss the format and procedural requirements of the scheduled hearing with the attorney retained to advise them was a meeting within the contemplation of KRS 61.805(1) and that it was therefore subject to the requirements of the Open Meetings Act. KRS 61.805(1) defines the term "meeting" as "all gatherings of every kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting." This provision, operating in tandem with KRS 61.810(1), mandates "open government openly arrived at." 99-OMD-146, p. 4, citing Maurice River Board of Education v. Maurice River Teachers, 455 A.2d 563, 564 (N.J. Super Ch. 1982).

At KRS 61.810(1), the General Assembly has declared:

All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times[.]

We reject the Board's suggestion that procedural matters attendant to the hearing do not constitute public business. Although the latter term is not statutorily defined, in Yeoman v. Commonwealth of Kentucky Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court defined "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." Pursuant to KRS 161.765(2)(d) the Board is required to hear and decide cases concerning administrators' demotions, and discussions relating thereto must be conducted in public unless expressly exempted by one or more of the exemptions codified at KRS 61.810(1)(a) through (l). Regardless of whether the gathering of a quorum of the Board members with Mr. Bryson to discuss demotion hearing procedures was "held in anticipation of or in conjunction with" the demotion hearing, it was as much a public meeting as the hearing that followed and subject to the requirement of openness unless specifically exempted. 5

Among the twelve exemptions that have been carved out of that requirement, in recognition of those extraordinary circumstances which may warrant a public agency in conducting its business in closed session, KRS 61.810(1)(c) authorizes agencies to conduct closed session "[d]iscussions of proposed or pending litigation against or on behalf of the public agency, " and KRS 61.810(1)(k) authorizes closed "[m]eetings which federal or state law specifically require to be conducted in privacy." These, along with the other ten exemptions to the Open Meetings Act, "must [be] narrowly construe[d] and appl[ied] . . . so as to avoid improper or unauthorized closed, executive or secret meetings." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997). It is the opinion of this office that neither of the cited exemptions provided a sufficient legal basis for the closed session discussion of demotion hearing procedures.

In Floyd County Board of Education v. Ratliff, above, the Kentucky Supreme Court defined the parameters of KRS 61.810(1)(c) , opining:

[T]he drafters of the legislation clearly envisioned that this exception would apply to matters commonly inherent to litigation, such as preparation, strategy or tactics. Obviously, anything that would include the attorney-client relationship would also fall within this exception. The statute expressly provides that the litigation in question need not be currently pending and may be merely threatened. However, the exception should not be construed to apply "any time the public agency has its attorney present" or where the possibility of litigation is still remote. See Jefferson County Board of Education v. The Courier-Journal, Ky.App., 551 S.W.2d 25 (1977).

Floyd County Board of Education at 923, 924.

Numerous opinions of the Attorney General support this view. In OAG 78-227, this office held that KRS 61.810(1)(c) is intended to permit a public agency to maintain the confidentiality of its litigation strategy when it is a party to litigation, is threatened with litigation, or anticipates initiating litigation on its own behalf. We have warned that the terms "proposed or pending" should not be so broadly construed as to authorize a closed session when the possibility of litigation is remote. OAG 82-240; OAG 91-141. Applying these general principles to a series of appeals arising under KRS 61.846(2), the Attorney General has held that the Highland Heights City Council properly conducted a closed session to discuss strategy, tactics, and the possible settlement of condemnation proceeding against the city (92-OMD-1728); that the board of trustees of the Louisville Firefighters Pension Fund improperly conducted a closed session to discuss litigation which did not involve the Pension Fund but instead involved the similarly situated Policemen's Pension Fund (93-OMD-119); that the Lexington-Fayette Urban County Government improperly conducted a closed session to discuss a dispute between the city and state concerning property known as the "Ben Snyder Block" (95-OMD-57); and that Kentucky Employers' Mutual Insurance Authority properly conducted a closed session to discuss whether to appeal an open records decision of the Attorney General, but improperly made the final determination to appeal the decision in the closed session (97-OMD-96).

Based on these decisions, the following guidelines have been established:

When the public agency has become a party plaintiff or defendant in a lawsuit, when a public agency has been threatened with litigation, or when the chance of litigation involving that agency is more than a remote possibility, the agency can then legally and properly invoke the exception set forth in KRS 61.810(1)(c). The public agency can at that time discuss in a closed session such matters as strategy, tactics, possible settlement and other matters pertaining to that case or that anticipated or probable case.

93-OMD-119, pp. 3,4; see also, 99-OMD-6 (Bowling Green-Warren County Regional Airport Board properly relied on KRS 61.810(1)(c) to conduct a closed session discussion of threatened litigation by airport tenants to challenge Board's refueling policy, and litigation the Board was likely to initiate against its insurer over disputed storm damage); compare 98-OMD-105 (Bourbon County Fiscal Court failed to make sufficient showing that it properly conducted closed session to discuss pending litigation) ; 01-OMD-130 (Meade County Fiscal Court improperly relied on KRS 61.810(1)(c) as the basis for closed session discussion of case in which it was neither a party plaintiff nor a party defendant); 01-OMD-152 (Martin County Fiscal Court's closed session discussion on the subject of retaining legal counsel was not authorized by KRS 61.810(1)(c)).

As narrowly construed by the Kentucky Supreme Court in Floyd County Board of Education v. Ratliff, above, at 924 "matters discussed under KRS 61.810(1)(c) must not be expanded to include general discussions of 'everything tangential to the topic." We find that because the Spencer County Board of Education had not become a party plaintiff or defendant in a lawsuit, had not been threatened with litigation and litigation was, at this juncture, a remote possibility (the matter of the administrator's demotion having not yet been decided against the administrator) , and the hearing procedures discussed were tangential to the topic of the demotion, its reliance on KRS 61.810(1)(c) was misplaced.

We further find that the Board's reliance on KRS 61.810(1)(k) and KRE 503 as the basis for the closed session was misplaced. As noted above, KRS 61.810(1)(k) authorizes public agencies to conduct in closed session "[m]eetings which federal or state law specifically require to be conducted in privacy[.]" 6 It is the Board's position that its meeting with Mr. Bryson to discuss the format and procedural requirements of the hearing qualify for protection under KRE 503 as "confidential communication[s] made for the purpose of facilitating the rendition of professional legal services . . . ." We disagree.

In OAG 97-1, this office determined that because "there is nothing in the privilege [found at KRE 503] which requires that a meeting of a public board or agency be conducted in private . . . subpart (k) does not allow for an executive session on the basis of attorney client privilege." A copy of that decision is attached hereto and incorporated by reference. No exception to the Open Meetings Act allows an agency to generally close its meetings for discussions with its attorney, and it is only when discussions relate to specifically enumerated subjects (i.e., proposed or pending litigation; acquisition or sale of property; collective bargaining negotiations; appointment, discipline, or dismissal of individual employees) that the public can be excluded. Since this office issued OAG 97-1, the Kentucky Supreme Court has confirmed that closed sessions are not authorized "any time the public agency has its attorney present," Floyd County Board of Education at 923, or for discussions of topics tangential to proposed or pending litigation. We therefore reaffirm the rule announced in OAG 97-1, that the attorney client privilege cannot be used to close an otherwise public meeting unless the discussions between the attorney and client directly relate to proposed or pending litigation against or on behalf of the public agency. In our view, Mr. Bryson's discussion with the Board concerning the format and procedural requirements of the hearing, a topic in which the public had an equally keen interest, did not fall within the parameters of the privilege or the exemption.

Assuming for the sake of argument that either of these exceptions authorizes the closed session, we find that because the prehearing conference with the Board's attorney was a Board meeting, within the meaning of KRS 61.805(1), the Board also violated KRS 61.815(1) in failing to comply with the requirements for conducting a closed session. The Board maintains that pursuant to KRS 61.815(2) "public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f) but only so far as (f) relates to students, (g), (h), (i), (j), (k) and (l) of KRS 61.810 are excluded from the requirements of [KRS 61.815(1)]." It is apparently the Board's position that because its closed session was conducted under authority of KRS 61.810(1)(c) and (k), a position we reject based on the reasoning set forth above, KRS 61.815(2) relieved it of its duty to comply with the requirements of KRS 61.815(1). While we acknowledge that KRS 61.815(2) lends itself to conflicting interpretations, this office and the courts, in a more recent case than that upon which the Board relies, have taken a position that is contrary to the Board's interpretation.

KRS 61.815(1) and (2) provide as follows:

(1) Except as provided in subsection (2) of this section, the following requirements shall be met as a condition for conducting closed sessions authorized by KRS 61.810:

(2) Public agencies and activities of public agencies identified in paragraphs (a), (c), (d), (e), (f), but only so far as (f) relates to students, (g), (h), (i), (j), (k), and (l) of subsection (1) of KRS 61.810 shall be excluded from the requirements of subsection (1) of this section.

Those provisions have existed in the law since its enactment, 8 and, as noted, since its enactment the Attorney General has wrestled with an interpretation of KRS 61.815(2) that does not entirely defeat the purpose and intent of KRS 61.815(1). In OAG 80-248, we analyzed the language of KRS 61.815 in an attempt to resolve the "problem of statutory interpretation" it presents. OAG 80-248, p. 1. There, we observed:

Taken literally KRS 61.815(2) excludes from any formality concerning going into a closed session every exception listed in KRS 61.810 except (b), (e), and (f) as it relates to students -- acquisition or sale of real property, collective bargaining negotiations and personnel matters. Such a literal interpretation would mean that an agency could go into closed session without any of the formalities set forth in KRS 61.815 under the other eight exceptions listed. However, . . . we do not believe that the literal interpretation comports with the legislative intent. We believe that the legislative intent is that agencies, per se, which are exempt from complying with the Open Meetings Law, such as the Parole Board, juries, the Governor's cabinet, committees of the General Assembly and other agencies exempted by statute or by the Constitution do not have to go through the formalities set forth in KRS 61.815 , and that agencies which are not exempt per se but which go in closed session to deal with an excepted subject matter must observe those formalities.

OAG 80-248, p. 2. Chief among the Attorney General's reasons for reaching this conclusion was practicality. We observed:

When a public agency which is generally required to hold open meetings finds it necessary to go into a closed session to deal with a particular excepted subject matter, the spirit of the Open Meetings Law and the concern of the public is best served by observing the steps set forth in KRS 61.815. For such an agency, convened in a regular or special meeting in accordance with KRS 61.820-61.825, to go into closed session without first giving notice in open session of the general nature of the business to be discussed and without first passing a motion in open session, would create doubt in the minds of members of the public as to whether the Open Meetings Law was being properly observed and could, in fact, lead to laxity in observing the law.

OAG 80-248, p. 2; accord, 94-OMD-78; 97-OMD-96. The Spencer County Board of Education is not exempt, per se, from complying with the Open Meetings Act, and we therefore conclude that it is required to comply with the requirements for conducting a closed session codified at KRS 61.815(1)(a). KRS 61.805(2)(c); Floyd County Board of Education v. Ratliff, above.

The position we have taken through the years finds support in Floyd County Board of Education v. Ratliff, above. In Floyd County Board of Education, the Supreme Court determined that the Board failed to give proper notice in open session of the matters to be discussed in a closed session. Rejecting the Board's argument that it had substantially complied with the requirements for conducting a closed session, the court opined:

KRS 61.815 provides that prior to going into an executive session, the public body must state the specific exception contained in the statute which is relied upon in order to permit a secret session. There must be specific and complete notification in the open meeting of any and all topics which are to be discussed during the closed meeting. In this case, the minutes of the Board do not reflect any mention of the "proposed or pending litigation" exception to the Open Meetings Act. The specific reason given for a closed session must be the only topic of discussion while the Board convenes in such a secret session. See Fiscal Court v. Courier Journal and Louisville Times Co., Ky., 554 S.W.2d 72 (1977); Jefferson County Board of Education, supra, at 28. We agree with the language written by then Court of Appeals Judge Johnstone and concurred in by the panel composed of Judges Schroder and Wilhoit that "the exceptions to the open meetings laws are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny. Unfortunately, we believe that is precisely how they were used in this case."

Discussions between Board members concerning matters not identified in the open meeting with proper notice are a violation of the Open Meetings Act and constitute illegal conduct.

Floyd County Board of Education at 924. The position long taken by the Attorney General relative to compliance with the requirements for conducting a closed session thus comports with the rule announced in Floyd County Board of Education v. Ratliff, above; 01-OMD-181. Based on the reasoning set forth in the cited authorities, we find that the Board erred in failing to comply with KRS 61.815(1)(a) and (b) 9 prior to entering the closed session to which Mr. Watson objects.

Turning to the second issue in Mr. Watson's appeal, we find that the record is insufficient to support the claimed violation of KRS 61.840, and in view of the disparate nature of that record, acknowledge that we are not equipped to resolve the factual dispute presented. Mr. Watson maintains that most members of the public who attended the meeting were unable to hear what was said, and that the Board's failure to address this issue contravened KRS 61.840 requiring "meeting room conditions which insofar as is feasible allow effective public observation of the public meeting." In support, he attaches the letters of six attendees who express varying degrees of dissatisfaction with the meeting room. The Board acknowledges its obligation under KRS 61.840 to provide meeting room conditions which allow effective public observation and reference the statements of various officials and attendees who expressed no dissatisfaction with the meeting room. The Board notes that the record is devoid of proof that any official was advised of the problem. While the courts have recognized that, in general "[t]here is no requirement of public objection found in the [open meetings] statute," Floyd County Board of Education, at 924, we agree that agency members or meeting participants whose statements are inaudible, but who are unaware of the problem, cannot reasonably be expected to rectify the problem. Compare, 97-OMD-28 (holding that board of education violated the Open Meetings Act by failing to address noise problem that had been brought to its attention, thus frustrating the public's ability to observe the meeting). This assumes, of course, that every feasible measure has been taken by the agency to insure effective public observation.

Ultimately, we cannot resolve this issue because of the conflict in the facts presented to this office by the parties. The problems associated with adjudication of this issue are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue 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, but encourage the Board to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840 and Mr. Watson and the six aggrieved attendees to address future concerns to the presiding officer of the agency whose public discussions are inaudible. 00-OMD-169; 02-OMD-2; 02-OMD-108.

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 proceeding.

Thomas S. Watson5225 Little Union RoadTaylorsville, KY 40071

Vicki Goodlett, ChairwomanSpencer Co. Board of Education2336 Van Buren RoadMount Eden, KY 40046

Robert L. ChenowethJohn C. Fogle, IIIChenoweth Law Office121 Bridge Street"Corner of Bridge & Second"Frankfort, KY 40601

R. Larry Holt, SuperintendentSpencer Co. Board of Education207 West Main StreetTaylorsville, KY 40071

Footnotes

Footnotes

1 Mr. Kleinjan requested a public hearing under authority of KRS 161.765(2)(d) which vests him with discretion to elect a public or private hearing. This provision largely mirrors KRS 61.810(f), investing public employees with the right to an open public hearing when that hearing might lead to their discipline or dismissal.