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 Greenup City Council violated the Open Meetings Act by failing to hold its February 28, 2006, meeting at a convenient time and place and in a room which did not permit effective public observation. For the reasons that follow, we find that the record on appeal does not support the claimed violation.
On March 2, 2006, Susan McDonnell, Arnold Quillen, Thurman Archey, Carla Maye, and Marcella Black submitted a written complaint "for reason of not being able to get in to attend the council meeting, nor see or hear the council members." 1 Neither Ms. McConnell nor any of her co-complainants proposed any remedial measure or measures. 2 In an undated response, Mayor Charles Veach denied that a violation of the Open Meetings Act occurred during the course of the February 28 meeting. He observed:
The meeting . . . was conducted in the Fiscal Courtroom of the Greenup County Courthouse, which is the largest public forum appropriate for a meeting within the town of Greenup, Kentucky. Meetings are usually held at the Greenup City Building but when it appeared that more people would appear than the City Building could reasonably hold, the decision was made to move the Council meeting to a new forum.
. . .
In addition to other measures, a notice was posted at the City Building and a person was placed at the City Building to direct anyone who wanted to attend the meeting to come to the Fiscal Courtroom located at the Greenup County Courthouse.
. . .
Before the meeting began, the City Attorney announced to those gathered outside waiting to get in that the meeting was going to begin and that anyone who wanted to come in to view the proceedings should come into the meeting immediately.
Relying on KRS 61.840 , as interpreted in 94-OMD-87, Mayor Veach expressed the view that no corrective measures were necessary inasmuch as the Council took all reasonable measures to insure that members of the public who wished to attend the meeting were afforded an opportunity to do so.
In supplemental correspondence directed to the Attorney General following commencement of this appeal, Greenup City Attorney R. Stephen McGinnis expanded on the Council's position. He acknowledged that although there are larger rooms in which the contested meeting might have been held, the Fiscal Courtroom in the Greenup County Courthouse "is the largest appropriate forum" because it "is designed to conduct public meetings and has seating for 80-90 people." The meeting was moved to this location, Mr. McGinnis continued, "in anticipation of a large crowd, " only after both newspapers were notified. The chief of police, he noted, was posted at the city building to direct attendees to the Fiscal Courtroom. Reiterating that he "announced to all those who were waiting in the hall that the meeting was beginning and that they should come inside, " Mr. McGinnis conceded that it was unclear "whether people remained outside of their choice (to smoke for instance) or whether the room simply could hold [no] more . . . ." Additionally, he conceded that one Council member expressed concern at the beginning of the meeting about the inability of some attendees to gain entrance to the room, and that "one time during the meeting it was expressed that people were having a hard time hearing," observing that, "when the crowd became too loud, order was called for." He confirmed that the Fiscal Courtroom "does not have the ability to transmit audio or video via closed circuit nor does it have an outside speaker capability . . . [or] an internal sound amplification system," 3 but commented that "[e]ven if a few people could not hear, the vast majority of those there obviously could or much more commotion would have been made . . . ." In defense of the Council's decision to continue the meeting, notwithstanding the larger than expected crowd and concerns expressed relative thereto, Mr. McGinnis relied on 94-OMD-87, affirming an agency's decision to move a meeting to a more suitable location, and 05-OMD-011, approving the same practice and "apply[ing] the rule of reasonableness in situations such as these." In sum, Mr. McGinnis concluded, "the actions of the City appear to be reasonable and designed to maximize the public's ability to attend and participate in the meeting." Although this is a close question, indeed, a very close question, we agree.
The Attorney General has, on more than one occasion, declared that a public agency's failure to address the problem of overcrowding at the site selected for a meeting constitutes a violation of the Open Meetings Act. See, for example, 97-OMD-28; 98-OMD-74. These decisions were premised on KRS 61.820, which provides that "all meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public," and KRS 61.840 which imposes a corollary duty on public agencies to "provide meeting room conditions which insofar as is feasible allow effective public observation of the public meeting." In 97-OMD-28, this office held that the Henderson County Board of Education violated the Act because it did not take action when confronted with a larger than anticipated crowd. We reasoned:
It may be that on most occasions the site of the . . . meeting would have been sufficient to accommodate the anticipated crowds. Since on this particular day the meeting site could not accommodate the number of people attending the meeting, the public agency was under a duty to make some attempt to correct the matter. Neither the Open Meetings Act nor decisions of this office specify the particular action an agency must take; rather, the agency's actions are dependent on the particular factual situation. It is not enough to concede that the meeting room was crowded. The public agency had an obligation to address the problems, particularly with regard to . . . those in the hallway outside the meeting room.
97-OMD-28, p. 2; compare 94-OMD-87 (holding that where the meeting was held in a room which would normally accommodate all those desiring to attend, and the public agency made arrangements to permit the overflow crowd to view the meeting from another room by means of television monitors, the agency fully complied with the law); 98-OMD-44 (holding that public agency properly attempted to deal with overflow crowd by setting up a monitor in an adjoining room); 03-OMD-178 (holding that agency cannot be held accountable for attendees' inability to hear where agency members were not aware of the problem; accord, 04-OMD-001).
It is undisputed that a larger than usual crowd, consisting of some two hundred people, attended the February 28 meeting of the Greenup City Council that was held in the Fiscal Courtroom, and that the room was not equipped with an internal amplification system. It is also undisputed that the Fiscal Courtroom seated eighty to ninety people and that some attendees were therefore forced to stand. Finally, it is undisputed that the Council was apprised, at least once, that some attendees were unable to gain entrance to the room because of the overcrowding and that some attendees were unable to hear. The narrow issue before us is whether these conditions rendered the meeting location inconvenient in contravention of KRS 61.820 and/or precluded effective public observation in contravention of KRS 61.840. 4
In addition to the authorities cited above, we find clear and direct guidance on this issue in a recent opinion of the Kentucky Supreme Court. In
Knox County v. Hammons, Ky., 129 S.W.3d 839 (2004), the Court addressed the question whether the Knox County Fiscal Court violated the Open Meetings Act, specifically KRS 61.820 and KRS 61.840, by conducting its meeting at an inconvenient time and place and by failing to ensure "effective observation" of that meeting. Noting that it was "undisputed that numerous citizens were not able to enter the crowded . . . courtroom and observed the proceedings from the hallway," and acknowledging that the fiscal court "might have held the meeting at a location that was more convenient than the county courthouse," the Court nevertheless opined:
Kentucky's Open Meetings Act does not impose upon government agencies the requirement to conduct business only in the most convenient locations at the most convenient times. The intent of the open meetings statutes is to ensure that government business is not conducted in secret, that the public is adequately notified of the time and nature of government proceedings, and that interested citizens be afforded the opportunity to participate in such proceedings. In short, the open meetings statutes are designed to prevent government bodies from conducting its business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require such agencies to seek out the most convenient time or location.
Hammons at 845. Rejecting the argument that the fiscal court violated the sprit and/or the letter of the Open Meetings Act, the Court concluded that although the time and location selected:
might not have been the most convenient time and location to hold the meeting, it certainly was not an inconvenient time or location. The fact that a large number of citizens did attend proves this point. The special meeting was announced to the public, and there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so.
Id. Hence, the Court found no violation of KRS 61.820 or KRS 61.840 . Accord, 04-OMD-145, p. 9, 10 (holding that although the meeting location selected by the City of Windy Hills "was clearly not the most convenient, the location was also not inconvenient as evidenced by the large turnout.")
The record before us is devoid of uncontested proof that "persons wishing to attend or participate in the [February 28] proceeding were effectively prevented from doing so." Hammons, at 845. The audiotape which the Council provided to this office to facilitate our view of the issue on appeal neither supports nor refutes the allegations leveled by the complainants. We are reluctant to assign error when the written record suggests that reasonable efforts were made to insure the broadest possible participation. Given the factual ambiguities in the record on appeal, and applying the rule of law announced in Hammons, above, we find that the Greenup City Council did not violate KRS 61.820 or KRS 61.840 at its February 28, 2006, meeting. This decision should not, however, be construed as a license to randomly move meeting locations to suit the whims of agency members or thwart public access to agency meetings, but as a narrow holding reflecting the exigencies of the particular situation confronting the Greenup City Council at its February 28 meeting.
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.
Footnotes
Footnotes
1 Two members of the Council, Sharla Coffee and Vickie Oreta, submitted letters in support of the open meetings complaint filed by Ms. McConnell, et al. In those letters, which are addressed to the Attorney General and not to the presiding officer of the Council, Mayor Charles Veach, additional allegations are made, including the allegation that the Council deviated from the special meeting agenda, that notice of the special meeting was not posted on the building in which the meeting was held, that larger meeting rooms were available in both the city and the county, that Councilman Brooks Jackson "told the Mayor . . . that there were people outside that could not get in, that "[t]here was nowhere for the people who didn't get in to go to see or hear the meeting," and that there was no audio or video outside the room and the audio inside the room "was never turned on" notwithstanding the fact that attendees "shouted out" the fact that they could not hear. Any one of these issues raises legitimate concerns under the Open Meetings Act, but none, as noted, was raised in the open meetings complaint submitted to the presiding officer of the Council, Mayor Veach. These issues therefore are not ripe for review by the Attorney General insofar as they were not formally presented to the Greenup City Council, and the Council was not afforded an opportunity to respond per KRS 61.846(1).
2 The failure to propose remedial measure contravenes KRS 61.846(1), which provides:
The person shall submit a written complaint to the presiding officer of the public agency suspected of the violation of KRS 61.805 to 61.850. The complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation. (Emphasis added.)
Nevertheless, this office has recognized that the rules of procedure governing the Open Records and Open Meetings Act "should be relaxed to permit the greatest possible access to this forum, and that a rule of substantial compliance should generally be applied," 92-ORD-1449, p. 2. We urge Ms. McConnell and her fellow complainants to review the cited provision to insure that future complaints conform to the requirements of the Open Meetings Act.
3 Neither, Mr. McGinnis hastens to note, is the Council meeting room in the city building equipped with audio equipment.
4 Given the limited scope of the allegations contained in the formal complaint, we find that the issues of the propriety of the Council's decision to move the meeting to the Fiscal Courtroom and the adequacy of the notice of the change of location are not properly before us. The complainants allege only that they, or others, were unable "to get in to attend the Council meeting, [and] see or hear any of the Council members."