Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Carter County Fiscal Court violated the Kentucky Open Meetings Act by failing to conduct its May 29, 2012, meeting in a place "convenient to the public" and "provide meeting room conditions" which allowed "effective public observation of the meeting" per KRS 61.820 and 61.840 , respectively. 1 When viewed in light of
Knox County v. Hammons, 129 S.W.3d 839 (Ky. 2004), the conflicting evidence of record fails to conclusively establish that a violation was committed. "Simply stated, we are not equipped to resolve this factual dispute in either party's favor, but encourage the [Fiscal Court] to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS [61.820 and] 61.840[.]" 03-OMD-178, p. 17.
By letter directed to presiding officer Charles Wallace, Carter County Judge Executive, on June 18, 2012, Renee Stewart submitted a complaint regarding the actions of the Carter County Fiscal Court during its May 29, 2012, special meeting. Ms. Stewart alleged:
The room was far over capacity and Patrick Flannery, County Attorney requested that Judge Executive Charles Wallace move the meeting to a larger room upstairs. Judge Wallace declined and Magistrate Cliff Roe said this is where we meet and we are not moving. The crowd asked to have the magistrates['] and [J]udge [E]xecutive's microphones on so they could hear. This request was refused repeatedly without explanation. During the meeting several people were standing in the open doorways trying to hear and see past the standing room crowd. Several people came and listened and left because they could not see or hear from the hallway. A church style pew bench broke under the weight of the people crowding in to be present.
To remedy the alleged violation, she proposed that business conducted on May 29th 2012, "be voided for reason of open meetings violation relating to an overflow crowd situation." Ms. Stewart further asked that "ALL microphones including the [J]udge [E]xecutive[']s be turned on and operational at all of the meetings." Lastly, she asked "that anytime in the future we have an overflow crowd situation that the meeting be moved to a larger room," or, alternatively, that meetings be permanently moved "to the larger area."
In a timely written response, Judge Wallace advised that "[w]hen the meeting was called to order on May 29th 2012 there were people standing inside the room but the hallway was empty as it was checked before the meeting was started." Judge Wallace further advised that a member of his office staff was "verifying that no one was left standing in the hallway" and Kentucky State Police officers "were also present in the building and hallway. " According to Judge Wallace, "[a]ll audio equipment was in working order. If there was a malfunction in the equipment we were not aware of the problem. It will be checked ASAP to make sure it is in working order. " People "speaking out of turn and not being quiet as the meeting was being conducted," he noted, "may have been some of the problem." 2 Asserting that Judge Wallace's response "Fails to Answer Complaint in a Satisfactory Manner," Ms. Stewart subsequently initiated this appeal.
According to Ms. Stewart, the Judge "did require everyone in the hallway to crowd into the room against two requests of the [Mr. Flannery] to move the overflow crowd to another larger room." Further, as the meeting was beginning "and throughout the meeting," she observed, "people came and stood in the hallway and stayed there or left" due to being unable to hear clearly. Ms. Stewart reiterated that a "pew style bench in the room broke under the weight of the people trying to crowd into it which caused the two state policemen to make their way into the room to see what happened." She also emphasized again that "[t]he audio equipment was not working. People asked several times as they started for them to turn it on and no response was given at that time. We have had another meeting since that time and it still is not working." Also, Ms. Stewart observed, the Judge Executive "is the moderator and supposed to conduct the meeting in a manner to make sure people can hear and that people do not speak out of turn. The overflow crowd itself may have been part of the problem and would have been better suited to a larger room." Since that meeting, the Judge has "moved a couple of meetings to the larger room upstairs with similar size crowds. " In her estimation, that "only proves this meeting should have been moved as well."
Upon receiving notification of Ms. Stewart's appeal from this office, Judge Wallace responded on behalf of the Fiscal Court, advising that his response to her complaint "regarding what transpired is accurate and the actions taken by the [Fiscal Court on May 29] were not . . . in any way in violation of the Open Meetings requirements[.]" Judge Wallace further explained that the "meeting addressed the possible establishment of a Regional Jail in concert with Boyd County. There was a crowd present, however, in my estimation there was not a need to move the meeting to a larger room." When the need has existed in the past, Judge Wallace continued, "I have moved the meeting to a different location." He also confirmed that the "audio equipment was and is in working order. "
By separate letter dated July 6, 2012, Mr. Flannery confirmed that he "did voice concerns twice in the 5/29/12 Fiscal Court meeting regarding an overflow crowd. " Mr. Flannery "did ask that the meeting be moved to a larger room (old Circuit Courtroom on the third floor) and that request was denied. However, since that time overflow crowds have been moved to that very suggested location without" his prompting. Generally referring to prior decisions of this office which "discuss reasonable alternatives when there is an overflow crowd, " Mr. Flannery also noted that "[a]lternative 'viewing rooms' are not available nor is it televised for live viewing within the Courthouse. " Because moving to another meeting room "inside of the Courthouse which could seat all in attendance" seemed to be "a reasonable accommodation for citizens and for government," Mr. Flannery made the aforementioned suggestion. Mr. Flannery has "no knowledge" as to whether the audio equipment does or does not work.
In reply, Judge Wallace did not dispute that Mr. Flannery "expressed his opinion" regarding the need to move during the meeting, but confirmed that neither he, "as the presiding officer, nor the majority of the Fiscal Court shared his view. There was a Kentucky State Trooper and a County employee stationed in the hall outside the Fiscal Court meeting room in the courthouse, and there was no one in the hall seeking admission to the meeting." Attached to his reply letter was a copy of the June 18, 2012, report by Building Inspector Sean Miller, Carter County Building Inspections, containing his findings "[a]fter meeting with Judge Wallace on Friday[,] June 15, 2012 and an inspection of the 3rd floor old courtroom and a follow-up inspection on Saturday[,] June 16, 2012[.]" Mr. Miller identified the "Occupant Load for this Room" and found that the "HVAC system needs to be inspected thoroughly and possibly cleaned[,]" that a "couple [of] smoke detectors [need to be] installed inside the courtroom and one outside in the stairwell[,]" and that the "benches [need to be] repaired or removed, taping them off is not adequate." Judge Wallace did not indicate his reason for including the inspection report, explain whether the Fiscal Court intends to relocate its regular meetings to the larger room, or dispute that subsequent meetings have been held there.
The Attorney General has, on several occasions, 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, the Attorney General 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. This office 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 that 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).
In addition to the decisions referenced above (upon which Mr. Flannery generally relied), however, this office finds direct guidance on the question presented in Knox County v. Hammons , above , wherein "the Kentucky Supreme Court articulated a less stringent standard to be applied in this context than the standard adopted by this office in 97-OMD-28 and its progeny[.]" 04-OMD-145, p. 7. The appellees/taxpayers in Hammons claimed that Knox County had violated the Open Meetings Act in passing an occupational tax ordinance and sought to have the ordinance declared void. Id. at 844. More specifically, the taxpayers argued that Knox County had passed the ordinance in violation of KRS 61.820 and KRS 61.840 by scheduling the special meeting of the Knox County Fiscal Court at which the ordinance was passed during the annual Daniel Boone Festival. Id. at 844. According to the taxpayers, Knox County did not conduct the meeting at a time or in a location that was "convenient to the public," and, therefore, the ordinance should have been invalidated. Id. As the Court observed:
There is no doubt that the Daniel Boone Festival is a major event in Knox County attracting large crowds, and that the area surrounding the Knox County Courthouse is extremely congested during the festival week. The record reflects that available parking near the courthouse during the festival is virtually non-existent, and that it is inconvenient to maneuver through the festival area to reach the courthouse. Furthermore, the Appellees also claim that the special meeting violated KRS 61.840 because it did not allow "effective public observation" of the proceedings. It is undisputed that numerous citizens were not able to enter the crowded district courtroom and observed the proceedings from the hallway.
Id. (Emphasis added). When viewed in context, such conditions did not constitute a violation of KRS 61.820 or KRS 61.840. Nor, arguably, did the conditions presented here when judged in light of Hammons .
Agreeing with both the trial court and the Court of Appeals, the Supreme Court in Hammons found "that the Knox County Fiscal Court could have chosen a more convenient time for the special meeting, one that did not coincide with a busy county festival. " Id. Even if holding the meeting at that time was necessary, the Court reasoned, the fiscal court could have held the meeting at a location that was more convenient than the county courthouse, which was "literally the epicenter of activity." Id. That said, the Court nevertheless concluded that the fiscal court did not violate KRS 61.820 in holding the special meeting at the designated time and place nor did the meeting conditions violate KRS 61.840. Id. at 845. Of particular relevance, the Court reasoned:
. . . 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 proceeding. In short, the open meetings statutes are designed to prevent government bodies from conducting [their] business at such inconvenient times or locations as to effectively render public knowledge or participation impossible, not to require agencies to seek out the most convenient time or location.
Id. Because the meeting at issue satisfied this more lenient standard, the Court concluded that Knox County did not violate "either the letter or the spirit" of the Open Meeting Act. Id.
Decisions of this office issued since Hammons weigh in favor of the agency on the facts presented though a conclusive determination cannot be made based upon the conflicting record. See 04-OMD-145 (holding that "downstairs meeting room at the St. Matthews fire station was not the ideal or most convenient location for the meeting which prompted this appeal given the turnout which could have reasonably been anticipated considering the totality of the circumstances as evidenced by the videotape of the proceeding" but was "also not inconvenient as evidenced by the large turnout," and the City of Windy Hills therefore did not violate KRS 61.820 or 61.840)(original emphasis); 06-OMD-079 (applying the rule of Hammons in holding that Greenup City Council did not violate KRS 61.820 or 61.840 as the record on appeal was devoid of uncontested proof that persons wishing to attend or participate in the meeting were effectively prevented from doing so though it was undisputed that a "larger than usual crowd" attended, the "room was not equipped with an internal amplification system," and 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" ); 07-OMD-094 (applying Hammons and relying upon 04-OMD-145 and 06-OMD-079 in finding there was no uncontested proof that persons were effectively prevented from attending or participating in the meeting by virtue of the location or that "meeting room conditions prevented effective public observation, in contravention of KRS 61.840, due to the arrangement of the chairs and the lack of a public address system," and further noting that if there was a problem in this regard, no objection was made, but clarifying that holding assumed "that every feasible measure has been taken to ensure effective public observation"); see also 07-OMD-127.
Ms. Stewart and the Judge Executive/Fiscal Court disagree as to whether overcrowding was an issue during the agency's May 29 meeting, and specifically as to whether persons were required to stand in the hallway or some persons elected to leave due to not being able to see and hear the meeting, neither of which is necessarily dispositive. The parties also have differing recollections of whether the audio equipment was fully operational and whether the agency declined to address the perceived malfunction. Judge Wallace maintained that "the audio equipment was and is in working order" but Ms. Stewart asserted that it still was not functioning properly during a subsequent meeting. Mr. Flannery has confirmed that he voiced concerns regarding the overcrowding issue and suggested relocating to a larger meeting room upstairs; however, Mr. Flannery has no knowledge of whether the audio equipment was or is fully operational. While this office agrees with Mr. Flannery's position that relocating was a "reasonable accommodation," assuming the larger meeting room suggested was, in all respects, a suitable alternative in terms of safety, accessibility, etc., the Attorney General is nevertheless unable to conclude that a violation of KRS 61.820 or 61.840 was committed in light of the parties' diametrically opposing versions of the relevant facts. Here, as in the decisions referenced above, the record is devoid of any uncontested proof that "persons wishing to attend or participate in the [meeting] were effectively prevented from doing so" by virtue of the meeting location. Hammons at 845. The record on appeal is also devoid of uncontested proof that the meeting room conditions prevented effective public observation of the meeting contrary to KRS 61.840. 3
Ultimately, this office cannot resolve the question presented given the conflicting record on appeal. The problems associated with adjudication of this question "are compounded by the fact that our review is limited to the written record presented by the parties. KRS 61.846(2). The divergent factual accounts presented by the parties with regard to this issue compel us to conclude that the record is insufficient to support the claimed violation." 03-OMD-178, p. 17; 07-OMD-094, p. 10. In sum, this office is "not equipped to resolve this factual dispute in either party's favor," but encourages the Fiscal court "to take all appropriate measures to provide meeting room conditions that conform to the requirements of KRS 61.840[.]" Id.
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 proceeding.
Distributed to:
Renee StewartCharles WallacePatrick Flannery
Footnotes
Footnotes
1 KRS 61.820 provides:
All meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public.
KRS 61.840 provides:
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.
2 Judge Wallace also indicated that "[d]ue to the KRS all Fiscal Court [m]eetings must be held at the Courthouse and an official time and place has to be set and announced to the public in a timely manner." In reply, Ms. Stewart clarified that she "did not ask or expect the meeting to be moved from the courthouse. The county attorney asked that it be moved upstairs to the much larger meeting room. " She also correctly observed that the Open Meetings Act does not specify the place. "It does not say courthouse, " Ms. Stewart noted, "but that is not an issue in the complaint."
Although KRS 61.820, upon which Judge Wallace presumably relied, provides that "[a]ll meetings of all public agencies of this state . . . shall be held at specified times and places which are convenient to the public, and all public agencies shall provide for a schedule of regular meetings . . . [and that] shall be made available to the public[,]" the Open Meetings Act does not contain any provision that designates the specific place where all meetings of a public agency must be held. Further, inasmuch as the May 29 Fiscal Court meeting was a special meeting, the Fiscal Court was required to ensure that proper notice of the "date, time and place of the special meeting and the agenda" was provided. KRS 61.823(3); see also KRS 61.823(4). The agency's compliance with KRS 61.823, which is not in dispute, presumably remedied this problem if that was the only hesitation or concern. Further discussion is unnecessary given "that is not an issue in the complaint."
3 While the courts have recognized that, in general, "[t]here is no requirement of public objection found in the [open meetings] statute," Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 924 (Ky. 1997), this office has recognized "that agency members or meeting participants whose statements are inaudible, but who are unaware of the problem, cannot reasonably be expected to rectify the problem." 07-OMD-094, p. 10; compare 97-OMD-28 (holding that board of education violated the Open Meetings Act by failing to address noise problem that had been brought to its attention, thus frustrating the public's ability to observe the meeting).