Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the City of Audubon Park ("City") violated the Open Meetings Act in convening a "virtual meeting" by email for the purposes of reading a proposed ordinance. We find that the City violated the Open Meetings Act in convening a "virtual meeting" by email for the purpose of reading a proposed ordinance.
On June 27, 2017, the City convened a "virtual meeting" for the purposes of reading a proposed budget ordinance. The "virtual meeting" consisted of an email dated June 27, 2017 at 6:15 P.M. to the city council members, which stated in its entirety:
As notified yesterday, this special 'virtual meeting' is convened for the sole purpose of first reading of a proposed budget amendment to transfer unspent funds from the Public Facilities appropriation to Public Safety Salaries, to cover an unanticipated shortfall. A draft amendment is attached for your review.
Pending remaining confirmations of availability, we will meet briefly at City Hall tomorrow at 6 PM for a second reading and consideration of action on this amendment. I hope to see you then, excepting those out of town.
There being no further business on the agenda, and without objection, the meeting is adjourned.
The email contained an attachment entitled "Amended Budget Ordinance FY 17, # 2.pdf."
Andrew J. Klump, a city council member, sent a complaint under the Open Meetings Act to the City on July 21, 2017. Klump argued that "the recent 'virtual meeting' which occurred on June 27, 2017, involving only one email being sent out to the City Council, with only a notice on City Hall's door, was a violation of the . . . Open Meeting Act. Additionally, this activity appears to violate KRS . . . 61.840. Conditions for Attendance." 1
The City responded to Klump's complaint on July 26, 2017. First, the city stated that "these proceedings had to be conducted in haste, specifically in order to meet the various obligations associated with meeting, legislating and publishing the results before the end of the fiscal year and consequent expiration of the budget and its enacting ordinance. " The City then argued that KRS 61.810(1) governs only meetings " at which public any public business is discussed or at which any action is taken . . . . This meeting having explicitly excluded any discussion, or action . . . it lacks the elements specified above to invoke the ensuing obligations of the Open Meetings Act. "
The City further argued that:
Nevertheless, . . . the procedural steps prescribed under the Open Meetings Act were still scrupulously observed. Notice was posted at City Hall more than 24 hours in advance, including (1) a summary of the proposed amendment; (2) an agenda providing only for the first reading . . . ; and (3) an invitation to the public to provide comments or concerns on the proposal by any of the various channels the city has made available. Council members were individually notified by message, including the same elements. The meeting was called by message at the designated time, with no preliminary public comments or concerns having been raised; the full text of the proposed amendment was circulated; and the meeting was adjourned. All Council members subsequently confirmed their timely receipt and reading of the proposal. 2
Klump initiated this appeal on August 3, 2017, arguing that:
Attempting to count one email being sent to the council as a public meeting is a violation of Open Meeting Act and explicitly KRS 61.840. . . . Without a physical meeting how is public observation possible? . . . Between the lack of notification to the public and the lone email sent without any other communication, this activity, "effectively render[ed] public knowledge or participation impossible." (Knox County v. Hammons, 12 S.W.3d 839).
The City responded on August 11, 2017, referring to its original response to Klump's complaint. The City further argued that "the new factor raised in this appeal, regarding 'meeting room conditions,' would apply only in a regulated meeting . . . . Clearly there is little feasibility in arranging such conditions for an event comprised solely of the distribution of a draft document . . . . Conversely, for the succeeding meeting with second reading and discussion, all such conditions were provided."
KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times." KRS 61.840 provides that "all agencies shall provide meeting room conditions . . . which insofar as is feasible allow effective public observation of the public meetings." The Open Meetings Act is "designed to require governmental agencies to conduct the public's business in such a way that the deliberations and decisions are accomplished in an atmosphere wherein the public and the media may be present."
Jefferson Cnty. Bd. of Ed. v. Courier-Journal, 551 S.W.2d 25, 27 (Ky. Ct. App. 1977). A telephone meeting does not meet these requirements.
Fiscal Court of Jefferson Cnty. v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72, 73 (Ky. 1977); see also 11-OMD-018 ("No authority exists in the Open Meetings Act . . . for telephonic meetings."). The same reasoning applies to meetings by email. See 14-OMD-015 ("We discern no appreciable difference between non-public telephonic meetings and non-public email meetings[,] regardless of whether all members of the Board were or were not parties to the email, could or could not see and hear each other, or did or did not vote . . . .").
The City contends that this "virtual meeting" was not a meeting subject to the Open Meetings Act because it "explicitly excluded any discussion, or action." The purpose of the "virtual meeting" appears to be to count as the first reading of an ordinance under KRS 83A.060(4), which provides that "no ordinance shall be enacted until it has been read on two (2) separate days." While no discussion occurred, the City did claim to undertake an action: the "reading" of the ordinance. "Any session of a board or commission must be open to the public where any action is taken that is required by law, rule, or regulation . . . ." 4 MCQUILLIN MUN. CORP. § 13:10 (3d ed.). The reading of the ordinance is an action required by KRS 83A.060(4), and is therefore required to be taken in an official meeting, which must be open to the public. 3
Given that an action was taken at the "virtual meeting", the City contends that the public was notified via the posting of the meeting at City Hall, and had an opportunity to comment, presumably by email or other electronic means. This does not approach the statutory requirements of KRS 61.840. The requirement of "meeting room conditions" necessarily entails the presence of an actual meeting room; there is no feasible way to allow for effective public observation of a meeting that is held only by email. The Open Meetings Act makes no provision for "virtual meetings"; meetings must be held in an actual physical room that complies with KRS 61.840. Accordingly, in holding a "virtual meeting" by email for the reading of a proposed ordinance, the City violated the Open Meetings Act. 4
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.
Footnotes
Footnotes
1 Klump requested as relief that:
(1) a town hall meeting is held by the Mayor and Council to admit fault on improperly holding a meeting, to explain the reasoning behind the meeting and to detail what events occurred, (2) a note or letter signed by the Mayor and all Council members is sent to each home explaining the situation regarding fault and the events that occurred, and (3) the purchase of the most recent version of the KLC handbook for the Mayor and Council to use in their official capacity in order to prevent future mistakes like this one from occurring.
2 The City also stated that "a companion meeting was announced for convening at City Hall on June 28, with the same notification protocols as above, but adding items to the agenda for discussion and action. . . . The meeting was convened at the appointed time. A brief discussion followed, and the amendment was unanimously adopted. The results were published to the citizenry by mail the next day, in order to take effect before the budget's expiration on July 1.
3 Whether the "virtual meeting" counts as a reading of the ordinance for the purposes of KRS 83A.060(4) is outside the purview of an Open Meetings Appeal. KRS 61.880(2)(a). We address only the question of whether the "virtual meeting" was subject to the Open Meetings Act.
4 The City also contended that "the only apparent alternative . . . was to declare an emergency -- which would instead have suppressed public information, by reducing the proceedings to a single meeting with little or no notice. This option wasn't ignored, but judged inferior in transparency . . . ." KRS 83A.060(7) provides that "in an emergency, upon the affirmative vote of two-thirds (2/3) of the membership, a city legislative body may suspend the requirements of second reading and publication to provide for an ordinance to become effective by naming and describing the emergency in the ordinance." While the City's dedication to increased transparency is commendable, the legislature has provided for emergency procedures in promulgating ordinances, and the City should consider utilizing existing statutory procedures rather than fashioning its own remedy not provided for in the Open Meetings Act or elsewhere.