Request By:
Rev. Ralph Priddy
Mayor Arthur Byrn
Sam Boyd Neely, Jr.
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Mayfield City Council violated KRS 61.840 in the course of its October 13, 2008, meeting by imposing conditions on the attendance of a member of the public other than those required for the maintenance of order. The narrow issue before us is whether the conduct of that member of the public, Ralph Priddy, was so disruptive that the Council could not maintain order justifying his ejection from the meeting. Acknowledging that this is a close question, and that its resolution turns on a subjective assessment of a recording and transcript of the meeting, we find that the Council violated KRS 61.840 when it ejected Mr. Priddy from the October 13 meeting.
In his complaint to Mayor Arthur Byrn, Mr. Priddy alleged that the Council violated KRS 61.840 by removing him from the meeting, and proposed, as a means of remedying the alleged violation, that the Council permit him to attend all future meetings without imposing conditions on his attendance. Mayor Byrn denied that conditions were imposed on Mr. Priddy "or anyone else's attendance at a Mayfield City Council meeting other than the condition recognized by Statute '. . . for the maintenance of order . . . .'" Mayor Byrn observed:
On Monday, October 13, 2008, you were allowed time to state your grievances to the Council and during my response you became interruptive and disruptive after which you were removed from the meeting.
In closing, Mayor Byrn assured Mr. Priddy that his attendance at future meetings would not be prohibited "so long as [Mr. Priddy] . . . is . . . not disruptive and order is maintained." Shortly thereafter, Mr. Priddy initiated this appeal, attaching a videotape of the meeting to facilitate our review.
In supplemental correspondence directed to this office following commencement of Mr. Priddy's appeal, Mayfield City Attorney S. Boyd Neely, Jr., questioned the Attorney General's jurisdiction over what he characterized as a non-open meetings issue, suggesting that Mr. Priddy pursue other avenues for what he characterized as a discrimination claim. 1 Mr. Neely provided this office with a transcript of that portion of the meeting in which "Mr. Priddy was instructed four times to stop interrupting but refused to do so," and reaffirmed that "[t]he Mayor acted within his statutory [sic] given discretion in having him removed from the meeting when he continued to be interruptive and disruptive to the meeting."
The transcript with which Mr. Neely furnished us tracks the videotape with which Mr. Priddy furnished us, and reads as follows:
Byrn: As far as you're the allegations that you made about uh African-Americans and and us not hiring or me specifically not wanting to hire African Americans, uh Ralph we've been through this several times. You filed suit against us uh at least twice. Uh both times those suits were rejected as being without merit.
Priddy: Mr. Mayor
Byrn: Because
Priddy: If you will excuse me
Byrn: Excuse me, I'm talking.
Priddy: O.K.
Byrn: Uh it does have everything to do with it because our our policies have not changed any, we are doing every, we are being as fair as we possibly can. Uh we, we, are we will hire qualify uh qualified people. We have always or at least for the past uh let's see uhhhh 17 years; we have had a six-month waiting period or or a six-month list. We have always started that list over again that since that time period in the past last 17 years, that even includes the uh the four years that's my understanding that would include the four years when uh uh there was another mayor uh in in this seat. There was still a six-month list. If we keep the list open forever and I don't feel like I have to go through this and explain this to you because its been explained to the uh uh Equal Employment Opportunity, and the the Human Rights Commission in Frankfort, Louisville, Lexington on your behalf uh
Priddy: It's not about me.
Byrn: Excuse me I'm talking.
Priddy: The citizens Then inaudible
Byrn: Excuse me but I am talking and your are not. I . . . Larry would you ask him to leave then.
Larry Alexander: Yes sir.
Mr. Pritty is escorted to the door .
Mr. Pritty speaks from back of the room but it is not understandable .
Byrn: I will be glad for you, I will be glad for you to talk.
Priddy: That's your problem, you don't want to listen to us.
Byrn: I I want to listen to you, but I'm not going to listen to somebody that's going to stand here or sit here and lie. And uh
. . . .
While we understand that this event did not occur in a contextual vacuum, we must confine our review to the exchange that culminated in Mr. Priddy's removal from the meeting, focusing exclusively on whether his continued attendance threatened the maintenance of order. We do not believe that it did, and that conditions other than removal might have been imposed on him to insure the maintenance of order.
In 00-OMD-169, this office was asked to determine if the Paducah Board of Commissioners violated the Open Meetings Act by refusing to allow a member of the public to address the board 2 and by "ordering [that individual] out of the [board's] chamber under threat of physical removal or arrest." At page 3 and 4 of that decision, the Attorney General observed:
Resolution of the legal issues in this appeal turns on an interpretation of KRS 61.840. That statute provides:
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.
Neither this provision, nor any other provision of the Open Meetings Act, has, however, been interpreted to invest the public with the right to participate, by means of public comment, in a public meeting. Thus, at page 3 of 95-OMD-99, we observed:
Consistent with the public's "concurrent right freely to express any approval or disapproval of any action or course about to be taken," City of Lexington v. Davis, 221 S.W.2d 659, 661 (Ky. 1945), we have 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.
Moreover, KRS 61.840 does authorize public agencies to impose conditions on attendance that are necessary for the maintenance of order. An examination of the decisions construing KRS 61.840 disclose none in which the issue on appeal arose from conditions imposed by the public agency for this purpose. From this, we must conclude that no member of the public has ever formally objected to measures taken by an agency to insure that order is maintained and that its meeting proceed without disruption.
Given the "widely divergent factual accounts presented by the parties," and the absence of any empirical evidence supporting either account, in 00-OMD-169 we concluded that we were "not equipped to resolve this factual dispute in either party's favor." Id.
In 08-OMD-180, this office held that the Nortonville City Council improperly excluded the public from a discussion of agency business in the interest of maintaining order. The council denied the allegation, asserting that the complainant "caused a disturbance in the meeting mandating the corrective action taken by [the mayor] to bring order to this disruption . . . which was to clear the room . . . ." At page 4 and 5 of that decision, we opined:
Suspension of the proceedings until order is restored may be necessary on those rare occasions when an attendee or attendees engage(s) in conduct so disruptive as to impede public business. KRS 61.840. The Act does not, however, permit an agency to "clear the room" and continue to discuss public business in a "closed session" absent express legal authority per KRS 61.810(1)(a) through (m) and full compliance with the requirements for conducting a closed session per KRS 61.815(1)(a) through (d).
08-OMD-180, p. 4, 5.
On October 8 of this year, the Attorney General issued a decision in which he declared that an attendee was improperly ejected from a public meeting because he insisted on standing in the back of the room rather than sitting. At page 8 of that decision, we observed:
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 [the attendee] 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. [Footnote omitted.] 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").
08-OMD-218, p. 8. In that appeal, empirical evidence in the form of a digital recording conclusively resolved the dispute in favor of the complainant.
As noted, the question now before us is a far closer one. Mr. Priddy's conduct was not exemplary. He did not quietly stand at the back of the room, but attempted to respond to the Mayor's statements. However, contrary to the Council's argument, he was not instructed not to interrupt. Nor was he instructed not to speak. In three instances, Mayor Byrn said "Excuse me, I'm talking, " and in the third instance directed Larry Alexander 3 to ask Mr. Priddy to leave. At this point, the transcript reflects that Mr. Priddy was "escorted to the door." No attempt was made to instruct him not to speak or to admonish him that he would be ejected if he continued to speak. Under these circumstances, we believe that his conduct was not "so disruptive as to impede public business, " and that less restrictive conditions may have been imposed, or at least attempted, before he was denied "the virtually unconditional right" to remain in attendance at the meeting. To hold otherwise would promote the arbitrary removal of members of the public without justification.
It is clearly established that Mr. Priddy attempted to speak in the course of Mayor Byrn's statement. It is not clearly established that his comments threatened the maintenance of order, thus justifying the Council's decision to remove him. We therefore find that the Council violated KRS 61.840 in conditioning Mr. Priddy's attendance on his silence when he was not "so disruptive as to impede public business. "
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 We find this argument unpersuasive. This office has, on at least three occasions, reviewed open meetings disputes relating to the imposition of conditions on attendance within the meaning of KRS 61.840. See 00-OMD-169, 08-OMD-180, and 08-OMD-218, analyzed below.
2 Mr. Priddy does not allege that the Council refused to permit him to speak in the "Business from the Community" portion of the meeting. His allegations relate to this subsequent removal.
3 The record on appeal does not reflect in what capacity Larry Alexander serves the Council.