Request By:
Paul R. Holliger, Sr.
William Schreck
William P. O'Brien
Terri A. Geraghty
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Louisville Metro Code Enforcement Board violated the Open Meetings Act during a public hearing on August 15, 2008. More specifically, the question presented is whether the Board violated KRS 61.840 by imposing a condition "other than those required for the maintenance of order" on a member of the public in attendance. Insofar as the objective proof conclusively establishes that Paul R. Holliger, Sr. was ejected from the hearing solely for declining to sit rather than remain standing in the back of the room, this office finds that a violation of KRS 61.840 occurred; the digital recording of the meeting confirms that such a condition was not required to maintain order as Mr. Holliger was neither being disruptive nor standing in front of anyone. By failing to issue a written response within three business days of receiving Mr. Holliger's complaint dated September 2, 2008, the Board violated the express and mandatory terms of KRS 61.846(1).
By letter directed to Carrie Taylor-Anthony, Acting Chairperson, Mr. Holliger submitted the following complaint:
At the start of the meeting you questioned me re: the reason I was standing. I explained I could see and hear better and you said it was "ok."
A few minutes later you invited me down front and I declined. At that time you said I could move up front and sit with the [S]heriff's [D]eputy. I said I was fine where I was. The [D]eputy immediately came back to me and demanded that I leave the room with him. You made no attempt to tell the [D]eputy I did not have to leave. You made the statement it was annoying you for me to be standing up even though you had said a few minutes earlier it was all right for me to do so. I was standing in the last row of seats in front of the brick wall. I've seen people line the walls at other hearings when there were plenty of seats. There are no rules or regulations prohibiting the public from standing during a hearing.
As a means of remedying the alleged violation, Mr. Holliger suggested that Ms. Taylor-Anthony should "allow the public to stand during public hearings." Having received no response to his complaint, Mr. Holliger initiated this appeal by letter dated September 12, 2008.
Upon receiving notification of Mr. Holliger's appeal from this office, William P. O'Brien, Director of the Civil Division, Jefferson County Attorney's Office, responded on behalf of the Board, acknowledging the Board's failure to respond but offering no explanation for same. Attached to Mr. O'Brien's response is a copy of the letter, also of September 25, which he directed to Mr. Holliger directly. In response to Mr. Holliger's complaint, Mr. O'Brien merely indicates that his "request will be studied by the Fire Department and it will be suggested that an area be provided for people who wish to stand instead of sitting."
On September 26, 2008, William P. Schreck, Director of the Department of Codes and Regulations, responded to Mr. Holliger's appeal by attaching a copy of "a brief accounting of the meeting in question" submitted to him by Bonnie McGrath, Administrative Coordinator of the Board, as well as a digital recording of the meeting. In relevant part, Ms. McGrath confirms that in between hearings, Ms. Taylor-Anthony requested that she "make an inquiry of an individual standing in the rear of the room what case he was present for today." Ms. McGrath did so "and he stated he was just observing and did not have a case pending." Ms. Taylor-Anthony then asked "the gentleman to sit down and he responded that he couldn't see or hear because of the sound system." In response, Ms. Taylor-Anthony requested that he move down to the front in order to see and hear better and the individual, now known as Paul Holliger, declined saying he was fine where he was." At this point, the Jefferson County Sheriff asked Mr. Holliger to comply with Ms. Taylor-Anthony's request and "move down front. Mr. Holliger again declined and had an exchange with the Sheriff, who then proceeded to request Mr. Holliger [to] come out into the hall with him." When Mr. Holliger protested, the Sheriff "insisted that he accompany him outside the courtroom." Following an exchange between "a female companion with Mr. Holliger, a Pat Thurman" and Ms. Taylor-Anthony, the Sheriff escorted Mr. Holliger outside.
In reply to Mr. O'Brien's response, Mr. Holliger contends that "he is not addressing the violation of my civil rights under the Kentucky Open Meetings Act that occurred" on August 15, 2008, during the hearing. Mr. Holliger has also provided this office with a copy of the same CD recording "of the actual moments in which" he was "ordered out of the hearing simply because" he chose to stand "unobtrusively at the back of the room and only after getting agreement from" the Chairperson prior to when the hearing began. According to Mr. Holliger, "this particular multi-purpose hearing room is used by various other governmental entities, including their various committees," which all permit attendees to choose whether to sit or stand "without any objection by their Chairpersons." This practice "has been ongoing for more than the [seven] years in which" Mr. Holliger has attended hearings in this room. Attached to Mr. Holliger's reply is a diagram of the floor plan for the Hearing Room.
By letter dated October 1, 2008, Terri A. Geraghty, Assistant Jefferson County Attorney, supplemented the Board's response, initially noting that Mr. Holliger and Ms. McGrath offer "disparate accounts of [the] hearing and related events." Based on prior decisions of this office, Ms. Geraghty correctly observes that strictly factual disputes cannot be resolved in the context of an Open Meetings appeal nor is the role of this office to "decide whether local policy or procedural rules related to the conduct of meetings" have been violated; rather, the narrow function of the Attorney General is to decide whether the public agency has violated the provisions of the Act. 1 Citing Knox County v. Hammons , 2 Ky., 129 S.W.3d 839 (2004), Ms. Geraghty notes that Mr. Holliger does not allege that he "or any other member of the public was denied access to the hearing or that there was any condition that members of the public were required to comply with before they were allowed admittance into the hearings." Likewise, Mr. Holliger does not contend "that he has any physical condition that would prohibit him from being seated during the hearings or that due to [the] number of attendees at the hearing there were no available seats. " Mr. Holliger's "sole complaint is that he was not allowed to stand during the hearings." In Ms. Geraghty's view, the actions of Ms. Taylor-Anthony do not constitute a violation as the "duty of a hearing officer is to provide their full and undivided attention to the individuals presenting their cases and the proceedings that are being conducted."
Ms. Geraghty then argues that KRS 61.840 "envisions some conditions on attendance may be required for the maintenance of order. Once Mr. Holliger was requested to please take a seat , it is obvious from the review of the [CD recording] that the proceedings became interrupted." (Emphasis added.) It is "obvious" that the Sheriff asked Mr. Holliger to have a seat "for the purpose of maintaining order at the hearing and to allow the hearings before the [Board] to proceed. There was no intent to deny Mr. Holliger or any other member of the public the right to observe the public hearing. " Although this office respectfully declines to speculate regarding the intent of the Board or the Sheriff, and the Board is correct in asserting that no condition was imposed for admittance , 3 the fact remains that Mr. Holliger did not cause any disruption by standing quietly in the rear of the room as the record confirms; rather, the disruption occurred when the Board imposed a condition beyond those authorized under KRS 61.840 by insisting that Mr. Holliger take a seat or leave the room instead of proceeding when he politely declined. 4
As a threshold matter, the Board violated the Open Meetings Act from a procedural standpoint insofar as the Board failed to issue a written response within three business days. More specifically, the procedural guidelines a public agency must follow in responding to complaints are codified at KRS 61.846(1). Upon receiving a complaint submitted under the Act:
The public agency shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of the complaint whether to remedy the alleged violation pursuant to the complaint and shall notify in writing the person making the complaint, within the three (3) day period , of its decision.
KRS 61.846(1)(emphasis added). In construing this provision, the Attorney General has consistently observed that KRS 61.846(1) "does not contemplate immediate action. It requires that the agency notify the complainant within three days of its decision on what will or will not be done about the complaint. Hence, requests that the agency take action in the future must be responded to within the three-day period." 03-OMD-116, p. 2.
On appeal, Mr. Holliger specifically challenges the Board's failure to issue a written response upon receipt of his complaint in accordance with KRS 61.846(1); the Board has not addressed this procedural violation. As the Attorney General has consistently recognized with regard to procedural requirements of the Open Records Act, in a statement which applies with equal force to the Open Meetings Act, such requirements "are not mere formalities, but are an essential part of the prompt and orderly processing of an open [meetings complaint]." 93-ORD-125, p. 5; 03-ORD-190. Failure to provide any written response within the statutory time frame, as the Board did here, necessarily constitutes a violation of KRS 61.846(1). In light of this determination, the remaining question is whether the actions of the Board on August 15, 2008, violated KRS 61.840. Although the Board is correct in arguing that KRS 61.846(2) narrowly defines the role of the Attorney General in adjudicating a dispute arising under the Open Meetings Act, which does not otherwise include resolving factual disputes, the record on appeal contains objective proof, and the parties in this case do not disagree regarding the legally relevant facts, 5 but differ in their view of the legal implications thereof - a question this office is obligated to address.
Resolution of the substantive question presented necessarily turns on application of KRS 61.840 , pursuant to which:
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.
When called upon to render a decision involving statutory interpretation, this office is required "to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In so doing, the Attorney General is "not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id . This office must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000).
Although the facts presented are unique, insofar as disputes arising under this provision generally center on whether adequate seating and proper meeting room conditions have been provided, this office is not without guidance in applying KRS 61.840. On at least two occasions, the Attorney General has recognized that KRS 61.840 "vests the public with a virtually unconditional right to attend all meetings of a public agency. " 00-OMD-169, p. 3. Imposing a condition(s) on attendance, such as residence in the city or county served by the public agency (98-OMD-44), or a signature on a mandatory sign-in sheet (98-OMD-44; 00-OMD-63), contravenes the mandate of KRS 61.840.
Neither this provision, nor any other provision of the Open Meetings Act, has been interpreted to vest the public with a right to participate, by means of public comment, in a meeting. In 95-OMD-99, the Attorney General made the following distinction:
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.
Id., p. 2 (emphasis added). To advance the public's "concurrent right freely to express any approval or disapproval of any action or course to be taken,"
City of Lexington v. Davis, 310 Ky. 751, 221 S.W.2d 659, 661 (1945), this office has 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; 02-OMD-181. In addition, the Attorney General has urged public agencies to consider the comfort of attendees within reason. 07-OMD-127, p. 7. More significantly, this office has recognized that the Open Meetings Act invests all members of the public with a right to record meetings unless his or her "individual conduct poses a threat to the maintenance of order." 04-OMD-102, p. 5.
Although KRS 61.840 does authorize public agencies to impose conditions on attendance that are necessary for the maintenance of order, this office fails to see how Mr. Holliger posed any such "threat" by standing in the rear of the room to observe the proceedings without comment. While neither the right to participate (or lack thereof), nor the ability to effectively observe the proceeding are in dispute, our holding today is consistent with the underlying rationale of the cited authorities. 6 Because KRS 61.840 authorizes only those conditions on attendance that are " required for the maintenance of order ," this office knows of no legal basis for the actions of the Board on the unique facts presented; restrictions or prohibitions may be imposed "only where individual circumstances warrant." 04-OMD-102, p. 5. See OAG 77-755, p. 3 (holding that prohibitions on the recording of public meetings should only be imposed "where the facts definitely indicate that such prohibition was required to maintain order").
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 Unlike in 04-OMD-145, upon which the Board partially relies in support of this otherwise correct assertion, the record on appeal in this case includes objective proof in the form of a digital recording which conclusively resolves any factual discrepancies - a critical distinction.
2 With regard to application of Knox Co. v. Hammons , 04-OMD-145 and 08-OMD-012 contain the relevant analysis; however, the Board's argument relative to Knox Co. v. Hammons is not persuasive on the facts presented as KRS 61.820 (convenience of the time and place) is not implicated nor is there any claim that the meeting room conditions did not "allow effective public observation" of the hearing(s).
3 Mr. Holliger does not dispute that the Board otherwise complied with KRS 61.840.
4 By letter dated October 2, 2008, Mr. Holliger replied to Ms. Geraghty's letter, noting that a review of the recording confirms that Ms. Taylor-Anthony "did not indicate in any of her statements" to him that she found anything that Mr. Holliger was doing "compromised proper order in the hearing room." Neither the counsel for the Board nor the prosecutor from the Jefferson County Attorney's Office "found any reason to intervene at any point during the hearing." However, the Deputy Sheriff ordered Mr. Holliger to leave the room "into the outer hallway only 11 seconds after the [Board Chair] asked [him] to consider sitting elsewhere."
On October 3, 2008, Mr. Holliger again supplemented his appeal, noting that a "simple review of the video recording shows" that if there was a breach of order "it was initiated by the" Board Chair. We agree.
5 To reiterate, having the benefit of a digital recording enabled this office to both view and hear the events in question; the parties differ in their perception and recollection of the relevant exchange, but whether Mr. Holliger was removed for declining to sit is not in dispute nor can a credible argument be made that Mr. Holliger was disturbing the meeting. Compare 00-OMD-169 (room was allegedly "ordered cleared and entry was barred to the general public" following a disruption but conflicting evidence was insufficient to support claimed violation of KRS 61.840).
6 In contrast, the Attorney General has, in more than one instance, declared that a public agency's failure to address the problem of overcrowding at a meeting site constitutes a violation of the Act. See 97-OMD-28, p. 2; 98-OMD-74; compare 06-OMD-079; 03-OMD-178; 98-OMD-44; 94-OMD-87.