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 Spencer County Fiscal Court violated the Open Meetings Act by requiring members of the public to leave the meeting room while the fiscal court met in executive session during meetings held on July 7 and July 21, 2014. For the reasons stated below, we find no violation of the Open Meetings Act.
On July 28, 2014, Lawrence Trageser submitted a written complaint to the Spencer County Fiscal Court and Spencer County Magistrate Jerry Davis. He complained that the only areas of the fiscal court building to which the public had access during the two closed sessions were a hallway and a break room containing no more than four chairs, with "no easily accessible restrooms or climate controlled facilities ? in the heat of summer." Mr. Trageser alleged that the fiscal court had "failed to make adequate provision for the convenience of the public during a closed session, thus violating KRS 61.820(1)." He proposed that the spectators be allowed to remain in the air-conditioned meeting room, which has access to restrooms and a water fountain, while the fiscal court should leave to "conduct their closed sessions in the upstairs of the Sheriff's Department for convenience or across the street in the county judge's office containing a conference room. "
Spencer County Judge/Executive Bill Karrer replied to Mr. Trageser's complaint on July 30, 2014. He stated as follows:
I understand and appreciate your concern as to how to accommodate the public in attendance when the Court goes into Executive Session. Since you were not in attendance at either of these meetings, it would be difficult for you to know what action was/is taken "In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics" as mandated in KRS 61.820(1).
Because of the new requirements under KRS 61.820(1) I make a determination every time we enter into Executive Session as to how the public will be best accommodated. Many facts go into the decision. How long do I think ? the session will take, how many people need to be accommodated, what does any member of the public request, the layout of the facility (restroom availability) and so forth. As you should be aware, this Administration has always held Executive Sessions at the end of our meetings to accommodate those who cannot, or wish not, to stay. They have always had the choice to move to the break room next to the meeting room or go outside and wait. ? No one has EVER been forced to wait outside. Time is always allowed for restroom breaks before we begin our session. From outside or from the break room, one can see into the Courtroom as to what is going on, just not hear as to what is being said. If there is some type of problem, we can be easily alerted. If more people were to choose to use the break room, more chairs could be added. Yes, even weather is considered. When the weather was bitterly cold a few months ago I alerted the crowd that although they were welcome to go outside if they wished, or go home, but given the number of people in the crowd I suggested that they wait in the meeting room and we would re-locate ourselves, documents, and notes to the breakroom for a very brief session. This did block easy access to the restrooms but everyone was given ample time and warning to use the restroom before the session began. It is significant to note that no one has ever asked for any other accommodations even though we have discussed the new law in open court.
While there is nothing inherently wrong with your suggestion that the Court use the Sheriff's office or the Judge's conference room for Executive Sessions, again consideration must be given to the convenience of the public. Would we make the public wait more than twice as long for regular session to re-convene because the Court had to gather their material(s) and relocate twice for a very short session [?] In other words, more time spent in travel than in meeting. To date, I do not believe that we have had a session that has warranted such a move.
In the end, ? this is truly a situation where the "cookie cutter" approach does not apply. What is the most convenient for the public can vary on [ sic ] the situation and, most important that decisions are tailored to those in attendance not those who may have had other needs or requests, if they had been in attendance.
(Emphasis in original.)
Mr. Trageser appealed to the Attorney General on August 3, 2014. He again complains that the entryway and break area cannot seat as many people as the meeting room, and that the hallway "is a fire exit escape path, not to be blocked." He states that "[c]losed sessions have gone on for up to 1 hour in the past," although he does not assert this as to the two meetings in question.
KRS 61.820(1), as amended in 2013, provides:
All meetings of all public agencies of this state ? shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.
Similarly, the 2013 amended version of KRS 61.840 provides, in pertinent part:
All agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.
In 14-OMD-020, we found that this statutory language "requires agencies, generally, to consider these facts in making adequate provision for the public's convenience during the course of the entire meeting and not just during open session. " We therefore concluded that "[a] meeting location that is unsuited to a reasonable standard of personal comfort at all times, and not just during an open session, is inconvenient under KRS 61.820(1) as amended." Thus, where a city commission provided no indoor accommodation for the public during its closed session, so that they had to wait outdoors in the parking lot during December, we found that the city had not made adequate provision for the public's convenience.
In this case, by contrast, the fiscal court provided an area of the building where members of the public could wait during the closed session. While the conditions afforded the public during a closed session are subject to a "reasonable standard of personal comfort, " we recognize the obvious fact that requirements of personal comfort for waiting may differ from those needed for observing a public meeting. For example, members of the public may be free to move about during a closed session, as opposed to having to remain in one spot so they can observe the meeting; thus, it is not necessarily required that a waiting area have the same seating capacity as the meeting room.
Although the hallway in this case may not have been air-conditioned and seating may have been limited, we do not find the waiting conditions so oppressive as to be "unsuited to a reasonable standard of personal comfort. " As for restroom access, it is uncontested that persons attending the meetings were afforded a restroom break prior to the closed sessions. Furthermore, we find no justification for Mr. Trageser's characterization of the entryway, hallway, and break area as a "holding pen," since members of the public were free to go outside at will, where they could still view the interior of the meeting room and observe when the closed session was concluded. Nor is there any evidence in this case that people were required to wait in a parking lot as in 14-OMD-020, where the city commission in effect provided no place for the public at all.
"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." Knox County v. Hammons, 129 S.W.3d 839, 845 (Ky. 2004) (emphasis in original). "[T]he 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 such agencies to seek out the most convenient time or location." Id. In the present case, as in Hammons, "there is nothing on the record to indicate that persons wishing to attend or participate in the proceeding were effectively prevented from doing so." 1 Id. Nor is there any indication that any person attending the meetings was effectively prevented from waiting in reasonable comfort until the fiscal court reconvened in regular session. Therefore, we find no violation of the Open Meetings Act arising from the fact that the fiscal court conducted its closed session in its regular meeting room.
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:
Mr. Lawrence TrageserHon. Bill KarrerRuth A. Hollan, Esq.
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