Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky Board of Chiropractic Examiners ("KBCE," "the Board") violated the Open Meetings Act at its regular meeting on August 28, 2009. For the reasons that follow, we find insufficient evidence to conclude that the Board violated the Act.
By letter dated September 1, 2009, Jonathan D. Boggs, Legal Counsel to the Kentucky Chiropractic Association, Inc. ("KCA"), submitted a written complaint to the "Presiding Officer" of the KBCE, in which he alleged:
At the August 28, 2009 meeting of the KBCE [the] KBCE repeatedly violated the Open Meetings Act in the following ways:
1.) The KBCE refused to allow the reporting arm of the Kentucky Chiropractic Association, Inc. the ability to record the meeting from a standpoint that allowed for effective use of the microphone system on their cameras. Because of the KBCE's violation of the letter and spirit of the law, the KCA was unable to hear much of the discussions conducted, nor were they able to effectively capture the entirety of the proceedings because the angle and position of the cameras was dictated by the President of the KBCE. On at least one occasion a Board member intentionally whispered and covered his mouth with his hand so that the cameras could not record his comments.
2.) The KBCE provided seating for the public that was located at the rear of three of the five members of the KBCE. Effectively, the public could only see two of the members, and instead had to observe the backs of the heads of three of the members, which naturally impeded their ability to hear and observe the three members with their backs to the public audience.
3.) The KBCE entered into closed session multiple times without informing the public in attendance the general nature of the business to be discussed in closed session, nor did they explain the reason for going in to closed session. They did properly recite the exceptions under which they were going in to closed session but this alone provides little to no information to the public; this does not mean that the exceptions they cited are valid: the board entered closed session on at least three occasions during which they were discussing if the actions taken by one complained upon were grounds for a hearing, this in and of itself is not an adjudication--this is a determination of if there will later be an area on which to adjudicate, the mere determination that something requires more investigation, or may or may not be a violation of KRS 312 is not an adjudication.
4.) The KBCE entered closed session to discuss possible litigation, this announcement and declaration was made by Board Counsel Michael West and he declared that one of the matters under consideration was the litigation of Eriksen v. KBCE, he then said that there was potential litigation being discussed, and then abruptly cut off his sentence before stating what the potential litigation was regarding. This is highly suspect and deprives the public of the information it rightfully should have.
In two additional paragraphs, Mr. Boggs further alleged that the Board had violated Robert's Rules of Order and also was "in violation of the definition of 'Action Taken.'"
As a means of remedying the alleged violations, Mr. Boggs proposed that the Board not "dictate" the placement of cameras and microphones and allow the KCA's camera to sit on the Board's conference table; that the members "sit all on one side of the Board table facing the public"; that all closed discussions of adjudications be prefaced by a statement of the parties and the issue involved and "the reason that this matter is best discussed in closed session" ; that Board counsel's speaking role during meetings be curtailed; and that meeting minutes include information about all pending or potential litigation discussed during a closed session. He further proposed various remedies addressed to the alleged violations of Robert's Rules of Order.
In a letter dated September 4, 2009, Board Counsel Michael West denied the allegations of an Open Meetings Act violation, maintaining in pertinent part:
With regard to numerical paragraph 1, KRS 61.840 provides that an agency may take appropriate action to maintain order. You assert that your camera's microphone system was unable to record some of the statements made at the Board meeting. The Board does not have a responsibility to ensure the quality of your recording equipment. You requested to place your camera on the conference table in front of the Board Chair. He determined that this would be disruptive and suggested that you place your cameras at the end of the conference table. The Board Chair acted within his authority in doing so.
With regard to numerical paragraph 2, KRS 61.840 provides that an agency must provide meeting room conditions that allow for effective public observation of the meeting. ? The conference table has seating on both sides and Board Members sit on both sides of the table during the meeting. This constitutes the most effective use of the work space. During the open portions of the meeting, you were sitting within 5-10 feet of the Board Members of which you complain. It is the Board's position that the public seating provided allows for effective public observation of its meetings.
With regard to numerical paragraph 3, KRS 61.815(a) provides that the Board must recite the general nature of the business to be discussed and the reason for going into closed session. The Board complied with this requirement in every instance where the Board went into closed session. ?
?
With regard to numerical paragraph 4, KRS 61.810(1)(c) provides that a public agency may go into closed session to discuss proposed or pending litigation against or on behalf of the agency. As you admit, the Board recited this exception and identified the parties to the litigation. This statement fulfilled the requirements of KRS 61.815.
The letter also responded to Mr. Boggs' further allegations regarding Roberts' Rules of Order and the definition of "action taken."
Mr. Boggs initiated this appeal on October 15, 2009, referring to his September 1 letter and providing a DVD containing excerpts from the August 28 meeting. Mr. West responded with a letter dated October 20, 2009, incorporating his September 4 letter by reference.
We note at the outset that Robert's Rules of Order are not part of the Open Meetings Act, and therefore a "violation" of those rules has no bearing on the issues in this appeal. See 05-OMD-117, p. 2 ("the Open Meetings Act does not establish rules of procedure relating to the conduct of meetings"). Furthermore, although "action taken" is defined in the Open Meetings Act at KRS 61.805(3), it is not possible to "violate" a definition. Accordingly, we do not consider Mr. Boggs' allegations that the Board was "in violation of the definition of 'Action Taken.'"
Regarding the allegation that a Board member partially covered his mouth and whispered something on one occasion, this was observable on Mr. Boggs' DVD. In 01-OMD-110, at page 9, we stated that a public agency "must avoid any whispered, inaudible, or closed discussion of the public's business." Nevertheless,
unreasonable restrictions on communications between members of public agency, and members of the agency and staff, cannot be imposed, even in an open public forum. Hence, if the matters under discussion are purely personal (such as a request for a glass of water), or are aimed at securing staff support or assistance (such as a request that a document be retrieved from the member's office), the Open Meetings Act is not abridged by discreet communications.
Id. In this case, the isolated incident of whispering was quite brief and appeared to be jocular in nature. Since nothing suggests that the remark pertained to public business, we cannot conclude that the Board member's whispering violated the Open Meetings Act.
Mr. Boggs' complaint about the general audibility of the proceedings does not relate to the ability of those present in the room to hear the discussions, but rather to the audibility of the videotape made by the KCA's agent. While the Open Meetings Act is meant to facilitate an accessible and audible meeting for those who attend in person, and KRS 61.840 does allow "recording and broadcasting" of a public meeting, nothing in the Act ensures that those who do not attend will have an equally good perspective through the use of a third party's video camera. We believe the Board acted reasonably and within its discretion to maintain order under KRS 61.840 by directing the KCA to place its camera at the end of the conference table instead of immediately in front of the chairman of the Board. 1
As for Mr. Boggs' complaint that not all members of the Board were facing the public seating, we decline to find that the Open Meetings Act inflexibly prohibits the members of a public agency from gathering around a conference table for a public meeting in a conference room configured to be used in that manner. It is sufficient that members of the public who are present can hear the discussions. That was the main issue in 99-OMD-196, where a committee sat on a stage with the members' backs to the audience and did nothing to remedy the problem after repeated complaints that people could not hear. In this case, by contrast, there was no complaint that the KBCE members could not be heard or understood by those present in the rather small meeting room, but merely that the KCA's microphone or camera could not pick up everything that might have been heard or seen by somebody in the room. Members of a public body assembled to conduct public business are not actors in an amateur film who can be directed how to orient themselves toward the camera or its microphone to give the most advantageous recording. KRS 61.840 provides for "effective public observation" of public meetings, but it does not guarantee the quality of any private audio or video recordings made by those in attendance.
The video excerpts submitted by Mr. Boggs show three instances 2 where the Board went into closed session. The first and third of these are preceded by a list of specific case numbers to be discussed, citations of KRS 61.810(1)(c) and (j), and a brief statement that the discussion relates to potential or pending litigation and deliberations of a quasi-judicial body regarding individual adjudications. As for the second instance, the portion of the recording submitted by Mr. Boggs is truncated and begins very shortly before the end of the open session, so that it is impossible to tell what statements preceded it other than the identification of specific cases. Mr. Boggs' complaint does not single out the second incident, but is addressed to all three incidents alike concerning the amount of information that was stated in justification of the closed session; we therefore presume that the discussion preceding the second incident was similar to that preceding the first and third.
Mr. Boggs argues that the "deliberations" exception under KRS 61.810(1)(j) does not apply to discussions about whether a party should be charged with a violation. This is an issue we decided to the contrary in 05-OMD-017, a copy of which is attached hereto. While any motion and vote to take action on a complaint or grievance must occur in open session, preliminary discussions by a quasi-judicial body at the "charging" stage may take place in closed session under KRS 61.810(1)(j).
Mr. Boggs further contends that any closed discussions of potential litigation under KRS 61.810(1)(c) must be prefaced by an explanation of the substance of such litigation (presumably "including potential parties to the suit, and the nature of the suit," as he stated in his suggested remedies). He cites no authority for this assertion, and we are aware of none. As the Board pointed out in its response, KRS 61.815(1)(a) requires only a notice of "the reason for the closed session" and "the general nature of the business to be discussed in closed session, " as well as the provision of the Act authorizing closed discussion. (Emphasis added.) In the case of litigation, this office has not held that more detailed information on the "general nature of the business" is required than whether the litigation is pending or proposed. 3 See 07-OMD-029, p. 9, n. 6. According to the recitations in Mr. Boggs' complaint, the Board complied with this standard when it went into closed session a fourth time to discuss pending litigation involving a party named Eriksen as well as some other proposed litigation. Accordingly, we find no violation of the Open Meetings Act.
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. Distributed to:
Jonathan D. Boggs, Esq.Michael West, Esq.Dr. Cara Lee Oldenkamp
Footnotes
Footnotes
1 Furthermore, in this instance it is difficult to see how the camera placement requested by the KCA, in the middle of the conference table, could have possibly achieved the stated goal of photographing more-rather than fewer-of the Board members.
2 A fourth instance referred to by Mr. Boggs, when the Board entered closed session solely to discuss pending and proposed litigation, is not actually contained on his DVD despite being indexed thereon.
3 With regard to the three closed sessions mentioned above, the Board in invoking KRS 61.810(1)(c) did not specify whether such litigation was pending or proposed. In those cases, however, the error was harmless because the deliberations exception under KRS 61.810(1)(j) was properly invoked.