Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the Butler County Fiscal Court violated the Kentucky Open Meetings Act during its regular meeting on January 10, 2011, specifically KRS 61.840, in recently changing its "long established practice of allowing visitors to share their questions/concerns/views/opinions with the Fiscal Court AFTER the business of the Court was concluded, and before adjournment" by instituting a new procedure requiring that any visitors wishing to address the Court now identify themselves at the beginning of the meeting and then have their subject of discussion listed on the agenda following a vote. Although Mr. Cron's point concerning the potential chilling effect such a practice could very well have on visitors who may be too intimidated or embarrassed to participate is a valid one, this practice does not constitute a violation of the Open Meetings Act given that members of the public do not have a statutory right to participate in public meetings or address members of a public agency. While this office has "encouraged public agencies to adopt procedural rules that 'include procedures permitting members of the public to address the public agency, '" 00-OMD-169, p. 4 (citation omitted), "it is not a right that can be enforced under the Open Meetings Act. " Id., p. 5.
By letter directed to Judge Executive David Fields on January 10, 2011, Robert D. Cron alleged that he "arbitrarily" changed the Fiscal Court's longstanding practice by asking at the beginning of the meeting if any member of the public in attendance wished to address the Fiscal Court, and then asking "that they identify themselves, and those that chose to participate were then made subject to a motion, a second, discussion, then a vote by the Magistrates." Mr. Cron stated his belief that the Fiscal Court's new policy "has a negative [e]ffect on public participation, dampens the spirit of encouragement of participation by the public, and negates any comments, positive or critical, which could be beneficial to the Fiscal Court." To remedy this perceived violation, Mr. Cron proposed that the Fiscal Court "[c]omply with the Open Meetings Act by not requiring visitors to identify themselves and be voted on by the Magistrates in order to speak," and instead "keep[ing] this portion friendly," so the visiting public feels welcome.
In a timely written response to Mr. Cron, Butler County Attorney Richard J. Deye responded on behalf of the Fiscal Court, initially asserting that much of his complaint merely questions whether the "change is a good policy." Mr. Deye then explained that in some instances under the old policy "the visitor business digressed from the discussion of public issues to personality discussions." Beginning in January 2011, Mr. Deye explained, the Fiscal Court "changed the protocol for members of the public to address the Court." As Mr. Deye explained, a request is made at the beginning of the meeting that any visitors who wish to address the Court "state their names and have their issue put on the agenda. Thereafter the agenda is approved by the Court. The public still has the opportunity to address the Court. It is simply that they must state their intention and be added to the agenda. " Noting that KRS 61.840 "is concerned with requirements for attendance at the meeting," as opposed to participating in a meeting, Mr. Deye emphasized that "no person attending the Fiscal Court Meeting was required to identify themselves in order to gain admittance into the room to observe the proceedings." Only those people "wishing to address issues with the Court were requested to state their name and have their matter placed on the agenda. " It is the position of the Fiscal Court, Mr. Deye observed, that this protocol does not violate the Open Meetings Act as it assures that the public "has the opportunity to effectively observe the meeting" but "does not provide that the public has a right to actively participate in any meeting."
Arguing that the new protocol "negates the spirit and intent" of the Act, Mr. Cron initiated this appeal by letter dated January 19, 2011. Upon receiving notification of Mr. Cron's appeal from this office, Mr. Deye supplemented his original response on behalf of the Fiscal Court. Mr. Deye reiterated his belief that Mr. Cron's complaint "questions whether or not the revised policy of the Butler Fiscal Court in dealing with visitor business and comments is a good policy" but fails to allege a violation of the Open Meetings Act. The change in protocol, Mr. Deye observed, "is simply an attempt to preserve the business demeanor of the meetings. The meetings are open to the public. No one seeking attendance at a meeting is required to divulge their identity. Anyone is welcome to attend the meeting and observe the proceedings in complete anonymity." 1 However, if someone wishes to address the Court, "the new protocol requests that they give their name and ask to be placed upon the agenda. " Addressing what he characterized as a "slight misconception," Mr. Deye further noted that the purpose of this change in policy "is to encourage visitors to put some forethought into why they wish to address the Court" in the hopes of preventing the meetings from becoming "a free-for-all." In other words, the purpose "is more to close the agenda than to censor or approve the topics." Mr. Deye reiterated in closing that the complaint "does not address an issue that is within the purview of the Open Meetings" Act. Existing authority validates Mr. Deye's position.
Resolution of the question presented turns partially 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, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 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, 35 S.W.3d 831, 835 (Ky. App. 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 (emphasis added). 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. Significantly, no condition was imposed on the statutorily guaranteed right of attendance in this case; rather, a condition was imposed on participation by public comment, which is not such a right.
Neither KRS 61.840, 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). In construing KRS 61.840, the Attorney General has, for example, urged public agencies to consider the comfort of attendees within reason. 07-OMD-127, p. 7. This office has also 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. 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 encouraged (but declined to require) public agencies to adopt procedural rules that "include procedures permitting members of the public to address the public agency. " 95-OMD-99, p. 2; 02-OMD-181. In the end, however, "it is up to each public agency to adopt procedural rules relative to conducting their meetings." Id.
This office has long recognized its limited role in resolving disputes arising under the Open Meetings Act, defined at KRS 61.846(2), declining to comment on whether a public agency has followed its own rules generally, and specifically in relation to participation by the public. 95-OMD-99, p. 1. "While participation by public comment is strongly encouraged, it is not a right that can be enforced under the Open Meetings Act. " 00-OMD-169, p. 5. It stands to reason that imposing conditions on a nonexistent right to participate by addressing the members of the agency, such as those imposed by the Butler County Fiscal Court, does not constitute a 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.
Robert D. CronDavid FieldsRichard J. Deye
Footnotes
Footnotes
1 Reiterating that visitor business digressed from discussion of public issues on some occasions in the past, Mr. Deye noted that some members of the public videotape meetings and portions of some meetings have thus found their way onto the internet (You Tube).
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