Request By:
Ann Huff
P.O. Box 424
Leitchfield, KY 42755William H. Thomason, Mayor
City of Leitchfield
P.O. Box 398
Leitchfield, KY 42755Kenneth F. Smart
Grayson City Attorney
Smart, Alvey & Duty, P.L.C.
62 Public Square
Leitchfield, KY 42754
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Leitchfield City Council violated the Open Meetings Act by "passing . . . [a] legal pad to visitors [attending Council meetings] to sign for the purpose of having their names placed in the [meeting] minutes" and by "show[ing the legal pad] to one member of the Council and . . . [a] former council member . . . to review the names of those who were present at the meeting." For the reasons that follow, we find that the record on appeal does not support the claimed violations of the Open Meetings Act.
On August 18, 2005, Ann Huff submitted a written complaint to Mayor William Thomason in which she alleged that the referenced conduct constituted violations of the Open Meetings Act. As a means of remedying the alleged violations, she proposed that the Council desist from the practice of circulating a legal pad to obtain names of attendees "for the record," and that the names of attendees no longer appear in the meeting minutes.
By letter dated August 23, 2005, Mayor Thomason denied the allegations contained in Ms. Huff's complaint. Acknowledging that the law provides that no person may be required to identify himself or herself in order to attend a meeting, he explained:
At no time would any person be precluded from attending a City Council meeting for failure to identify himself or herself. The purpose of having a sign-in sheet is to provide us with the opportunity to properly recogniz[e] those in attendance. Although we appreciate guests signing the sheet, nobody is now or ever has been required to identify himself or herself.
To eliminate any confusion as to the voluntary nature of the sign-in sheet, Mayor Thomason agreed to notify those in attendance at future meetings that "self-identification is purely voluntary." Mayor Thomason's statements were echoed in supplemental correspondence directed to this office by City Attorney Kenneth Smart following commencement of this appeal.
On appeal, Ms. Huff questions whether it is proper for attendees to be asked to sign in "for the record" even if "self-identification is purely voluntary." She seeks a ruling on the legality of the use of a sign-in sheet and on the review of the sign-in sheet by a current and former member of the City Council.
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.
(Emphasis added.)
Citing prior decisions interpreting KRS 61.840, in 00-OMD-169 this office stated:
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.
In 98-OMD-44, this office condemned the practice of requiring attendees to indicate their place 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. In a 00-OMD-63, 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 each of these decisions, the Attorney General concluded that the agencies' actions contravened KRS 61.840 because there was an express or implied requirement that attendees identify themselves on a sign-in sheet as a condition of attendance. There is no proof in the record before us of such an express or implied requirement for attendance at the meetings of the Leitchfield City Council. Moreover, the Council has, in an abundance of caution, agreed to advise attendees at future meetings that the sign-in sheet is purely voluntary. We therefore find insufficient proof in the record on appeal to support the claimed violation.
With reference to the second allegation of Ms. Huff's complaint, we find that because the Open Meetings Act does not prohibit inclusion of the names of attendees in the minutes of its meetings, and because attendees can "opt out" of inclusion in the minutes by refusing to identify themselves, the Leitchfield City Council's conduct does not constitute a violation of the Act. Our function, in reviewing an appeal under the Open Meetings Act, is restricted to a determination of whether the agency violated the provisions of the Act. We can discern no violation of KRS 61.800 to 61.850 in generating minutes of a public meeting that include the names of attendees who voluntarily provide their identities. KRS 61.835 requires that the minutes "set[] forth an accurate record of votes and actions at [the] meeting." With respect to any rules established by an agency beyond this minimum threshold, the Attorney General has observed:
The state legislature has not dictated . . . procedural rules relating to the conduct of meetings, and as a consequence, each legislative body must adopt its own rules of procedure. Many . . . 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. As long as the minutes satisfy the threshold requirement found at KRS 61.835 by setting forth an accurate record of votes and actions taken at the meeting, we believe that there is no statute prohibiting the minutes from containing more. We therefore find no merit to Ms. Huff's complaint.
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.