Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Jefferson County Board of Education violated the Open Meetings Act when it held a special meeting in a law office located in a privately owned office building. Under the facts given, we find that this meeting location was in violation of KRS 61.820(1).
By an undated letter mailed on June 21, 2017, Jim Waters, President and CEO of the Bluegrass Institute, along with Amye Bensenhaver, Director of the Bluegrass Institute Center for Open Government, submitted a written complaint to Board Chairman Chris Brady, alleging the following, in pertinent part, with regard to the Board's special meeting held on April 30, 2017:
. . . The Courier Journal reported that "Sunday's meeting was held at the law offices of Wyatt, Tarrant & Combs, on the 28th floor of 500 West Jefferson St. . .. to accommodate people's busy schedules, and the law office was used so as to not inconvenience district employees who would have to open a building on a weekend. " Leaving aside the unusual decision to conduct the meeting on a Sunday, which might discourage some attendees, we believe that the board's meeting, conducted in a private law office on the 28th floor of an office building in downtown Louisville to which access is generally restricted to business invitees, rather than the board's regular meeting site, did not satisfy the requirement that all public meetings must be conducted "at specified times and places which are convenient to the public" found at KRS 61.820(1).
(Emphasis in letter.) As a remedy, they proposed that the Board acknowledge a violation of the Open Meetings Act and agree to comply in the future. 1
In a response dated June 26, 2017, Mr. Brady stated that there was no "proof that you or any member of the public was in fact dissuaded from attending the meeting because of its location," and further argued that the location was convenient to the public:
The lobby of the building contains restaurants, a convenience shop and, until recently, a bank, all of which are frequented by the general public during the week. Public, prominently-identified elevators transport the public to offices throughout the building, including the 28th floor of Wyatt, Tarrant & Combs where entry doors are (and were on the day of this meeting) wide open during the day. The public would have no reason to believe that accessibility would be any different for the April 30th public meeting, even though that day was a Sunday. The lobby reception desk turned no one away or in any way discouraged any attendance on that day.
The present appeal was received in this office on August 1, 2017.
In its letter of appeal, the Bluegrass Institute argues that "[e]xperience teaches that access to private offices is generally limited to business invitees during business hours. Private offices are inaccessible to the public during nonbusiness hours, and members of the general public do not freely enter and exit nonpublic buildings and private offices at any time." The appellants then recount their own efforts to enter 500 West Jefferson Street on a more recent Sunday afternoon, July 9, 2017:
All doors to the building were locked. We gained admittance when a guard buzzed us in through a locked door on Fifth Street after witnessing our multiple unsuccessful attempts to enter the building. All of the businesses referenced in the board's response were closed and the guard confirmed that the building is always locked on weekends. Should a visitor gain admittance, he or she is not permitted to take the elevators to the private offices located in the building.
In the Board's response dated August 8, 2017, counsel Deborah Patterson characterizes 500 West Jefferson Street as "a communal, metropolitan building" with city bus stops nearby and free street parking on Sundays. The Board again asserts that the meeting "was held at the law offices to conserve the considerable costs associated with opening the VanHoose Education Center on a weekend. " Additionally, the Board contends that members of the public do not freely enter and exit the VanHoose Education Center either:
When an individual arrives at VanHoose during regular business hours, he is directed to sign in at one of two computer stations. In so doing, he must not only enter his own name, but also must enter the name of the person whom he wishes to see. If he has never visited VanHoose before, he is required to have his picture taken so that it may be saved in the computer system. He is then given a printed identification badge which must be returned upon exiting the building.
Finally, the Board asserts that the appellants have presented "not a single person . . . who was actually dissuaded from attending the April 30, 2017 meeting."
KRS 61.820(1) provides as follows:
All meetings of 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 . In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.
(Emphasis added.) "The intent of the open meetings act 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 proceedings." Knox County v. Hammons, 129 S.W.3d 839, 845 (Ky. 2004). "[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. We observed in 13-OMD-107 that "the analysis relative to KRS 61.820. . ., as with all issues arising under the Open Meetings Act, remains fact specific."
While proof that specific individuals were discouraged from attending a meeting is relevant, we have not regarded such proof as essential to establishing a violation of KRS 61.820(1). As we stated in 13-OMD-107, "[m]embers of the public did not have a duty to notify the Board of whether they planned to attend the meeting or specify their purpose for doing so" (or, in this case, for not doing so). Accordingly, we do not deem it fatal to this appeal that no such specific evidence has been presented.
"A public meeting must be held in 'a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend. '" 13-OMD-186 (quoting City of Lexington v. Davis, supra, 310 Ky. 751, 754, 221 S.W.2d 659, 661 (1949)). The standard here is one of reasonableness. In this case, the Board met in a private law office. We have previously noted as follows:
A person has the right, in his private business, to control it, and may select such persons as he chooses with whom to transact such business. He can prevent whom he pleases from entering his office. . .. He can admit or reject whom he pleases. It is his own business, and the public have no rights therein against his wishes.
OAG 79-123 (quoting Breitenbach v. Trowbridge, 31 N.W. 402, 403 (Mich. 1887)). Given these principles, corroborated by common experience as well as the specific experience of the appellants when attempting to access the office of Wyatt, Tarrant & Combs on a Sunday, we believe it reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting there.
We find no particular merit in the Board's effort to prove that the location where this special meeting was held is no more inaccessible to the public than its regular meeting site. If anything, the Board's description of the extensive security protocols at the VanHoose Education Center merely suggests that by holding its regular meetings there the Board might be in violation of KRS 61.840, which provides that "[n]o condition other than those required for the maintenance of public order shall apply to the attendance of any member of the public at any meeting of a public agency" and "[n]o person may be required to identify himself in order to attend any such meeting." Cf. 00-OMD-63; 01-OMD-23.
The Board would argue that this case is similar to 14-OMD-206, in which we found that the Board of Regents of Eastern Kentucky University did not violate KRS 61.820 by scheduling one of its regular meetings on the campus of Hazard Community and Technical College ("HCTC"). We disagree. Our decision in that appeal was based in part upon the fact that EKU had a substantial presence in and around Hazard, including offering classes on the HCTC campus, and that the meeting included a ribbon-cutting ceremony for an EKU facility under construction in neighboring Letcher County. Furthermore, we observed that EKU served the Commonwealth at large, rather than a discrete local area, and its Board of Regents had "specific authority under KRS 164.340 to hold its meetings at any place 'agreed upon.'" In light of those factors, we ruled that it was convenient to the public for EKU to hold that meeting at HCTC--or, as counsel put it, "within the facility of one of our University owned assets."
We are unaware of any decision in which the Attorney General has ever found that a meeting in an office on private premises was held in a place "convenient to the public" under KRS 61.820(1), 2 nor do the facts incline us so to rule in the present appeal. This is not a situation in which a suitable public building was unavailable. In 16-OMD-178, we suggested "a neighboring public school library or auditorium" as a suitably convenient site for a meeting of the city council of Mockingbird Valley, which had no city hall. Here, in addition to the VanHoose Education Center, the Jefferson County Board of Education governs a system of approximately 174 schools, 3 many of which would presumably contain a library, auditorium, and/or gymnasium suited to the purpose of holding a special meeting. With such a selection of locations available in public buildings, we cannot reasonably find it "convenient to the public" to hold a public meeting in a private law office on the 28th floor of a privately owned building, based solely on unspecified "costs" of opening the VanHoose building on a Sunday. We accordingly find that the location of the April 30, 2017, meeting was in violation of KRS 61.820(1).
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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