Opinion
Opinion By: Andy Beshear, Attorney General; Matt James, Assistant Attorney General
Open Meetings Decision
The questions presented in this appeal are whether the Board of Education of the Danville Independent Schools ("Danville Independent") violated the Open Meetings Act in: (1) meeting conditions; (2) changing the order of public comments; (3) a board member text messaging during a meeting; (4) allowing allegedly inappropriate comments; (5) changing the agenda of a regular meeting or discussing items not on the agenda; and (6) two board members not reading prepared statements. We find that Danville Independent did not violate the Open Meetings Act on any of those grounds.
Background
On February 26, 2018, a group of persons identifying themselves as Concerned Staff and Citizens of the Danville Independent School District Community submitted an open meetings complaint to Danville Independent. The complaint alleged that Danville Independent violated the Open Meetings Act at its regular meeting on February 19, 2018 by overcrowding and difficulty for the audience in hearing, irregularities in the public comment period, a misleading and changed agenda item regarding the superintendent's contract, and collusion in two board members not having prepared statements indicating a secret less-than-quorum meeting. 1 The complaint was signed by over one hundred people. 2
Danville Independent responded to the complaint on March 1, 2018. Regarding the meeting room conditions, Danville Independent admitted that "the meeting was especially crowded during items 1-3 of the agenda. " It stated that:
During the portion of the meeting that is the primary focus of the complaint, there were only a handful of individuals in the hallway, and they were there by choice . . . . There was not a single complaint to the Board during the meeting that a person who wanted to participate in the meeting could not participate . . . . There was not a single complaint to the Board that a person was unable to hear the discussion. . . . The school district's videotape of the school board meeting demonstrates that the sound quality was quite clear.
Regarding the allegations of irregularities in public comments, Danville Independent attached the sign-in sheet for public comment, and stated that, "with the single exception of Kay Anderson, Board Chairperson Matthews called the individuals in the order that they signed the sheet." It further stated that Ms. Anderson was not called first because she had sent a text message to the chairperson indicating that she did not wish to speak, but subsequently sent another text indicating that she would like to speak, and was called eighth instead of first.
As to the allegations of allowing improper public comments, Danville Independent stated that one individual commented that her concerns that her children were being bullied had not been adequately addressed, and another individual commented that his son had been unfairly disciplined. Concerning the chairperson's text messaging during the meeting, Danville Independent referred to the text messages sent by Ms. Anderson to the chairperson, and further stated that Chairperson Matthews "received a text message from one of her daughters that she was sick, to which Ms. Mathews responded by instructing her to send a text message to her father. . . . There was no discussion whatsoever about substantive school board matters . . . ."
With regard to the listing of the discussion of the superintendent's contract, Danville Independent argued that "a public agency is not required to have an agenda for a regular meeting, " and "at a regular meeting a public agency is free to deviate from the agenda. " It stated that "the fact that a vote occurred came as no surprise to the many school district employees and citizens who attended an otherwise routine board meeting, and no members were surprised by the vote," referring to discussions of the superintendent's contract at a previous board meeting and in the local newspaper. Addressing the allegations of a secret less-than-quorum meeting, Danville Independent argued that the fact that three board members had prepared board statements and two did not was not evidence of a secret less-than-quorum meeting. 3
Rhonda Caldwell and Gail Wright, two of the signers of the complaint, initiated this appeal on March 5, 2018, stating:
1. Meeting room conditions were not addressed by the Board Chairperson at any time during the meeting. [Danville Independent] acknowledges this . . . but insists there is no violation because no one complained regarding the inability to hear or the overcrowded conditions. We maintain the meeting was in violation of KRS 61.840 as it is the Chairperson's . . . responsibility to address this. Those with hearing aids especially struggled to clearly understand the conversations . . . .
2. Public comment was manipulated by the Chairperson during the meeting. . . . Several employees . . . observed the chair texting or receiving texts throughout the first speaker's presentation for a minimum of five minutes. . . .
We maintain this violates the Open Meetings Act. The text messages were related to the board meeting and many attending were not privy to the conversations. . . .
3. Two individuals gave public comment regarding personal and specific matters related to their child and referenced specific principals. . . . School boards are not permitted to publicly excoriate teachers or administrators. We maintain the Chairperson chose to ignore the remedy of calling these individuals out of order.
4. Discussion of superintendent's contract was listed as the final agenda item. There was no discussion of the contract. Rather the Chairperson made a motion to declare a vacancy--a new agenda item. . . . 4
5. . . . The actions of three board members indicates collusion prior to the meeting. . . . Three board members read prepared statements regarding their vote. Two board members were unaware of the impending motion and did not have prepared statements. . . .
. . . We maintain this is not coincidence. A Chairperson who replaces an agenda item with a new one has established well in advance of the meeting her motion will carry. This is a direct violation of KRS 61.810(2). 5
Danville Independent responded to the appeal on March 12, 2018, largely incorporating its response to the complaint. 6
Analysis
We begin our analysis with some general remarks about the scope of the Attorney General's review under the Open Meetings Act:
The Attorney General's role in adjudicating an open meetings dispute is a narrow one. This office is not empowered to resolve disputes that involve issues that are beyond the scope of the Act. Our review is confined to the issue of whether the agency violated the Open Meetings Act, and not the remedial measures it implements. Thus, how an agency conducts its business, such as the procedural manner in which a vote is taken is not addressed by the Open Meetings Act. . . .
. . . .
. . . No doubt, the public reasonably expects and heartily welcomes open and public debate on each and every issue upon which the agency is empowered to act, but . . . .
. . . The Open Meetings Act does not dictate specific procedural rules relating to the conduct of meetings.
03-OMD-035. "In other words, the Attorney General is 'not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]' in the context of an Open Meetings Appeal." 16-OMD-030. This office cannot resolve every grievance with a public agency in the context of an open meetings appeal; our review is strictly limited to whether the agency violated the provisions of the Open Meetings Act.
1. Meeting Conditions
Concerning the claim that the meeting conditions were not conducive to the public, KRS 61.820(1) provides that "all meetings of all public agencies . . . 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. " KRS 61.840 provides that "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 Knox Cnty. v. Hammons, 129 S.W.3d 839 (Ky. 2004), the court addressed the standard for whether meeting room conditions violate the Open Meetings Act: whether persons who wish to attend or participate were effectively prevented from doing so. "The open meetings statutes are designed to prevent government bodies from conducting its 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. at 845. This analysis is fact-specific. "Although the Court indisputably established a more lenient standard in Knox , the Court did not establish a blanket rule as to application of KRS 61.820 and 61.840; rather, the Court found that . . . nothing in the record indicated that 'persons wishing to attend or participate in the proceeding were effectively prevented from doing so.' In other words, the analysis relative to KRS 61.820 and 61.840 . . . remains fact specific." 13-OMD-107. 7 Further, we have generally required that agencies must reasonably be expected to be aware or be made aware of the problems in meeting conditions. "'Agency members or meeting participants whose statements are inaudible, but who are unaware of the problem cannot reasonably be expected to rectify the problem.'" 13-OMD-107 n. 3; 04-OMD-001.
In this case, the allegations made by appellants do not establish that public knowledge or participation was effectively impossible, only that the meeting was crowded and that some may have had difficulty hearing. Appellants do not allege that any Danville Independent board members were made aware of anyone who was unable to participate or of anyone with difficulties in hearing. These disputed allegations are insufficient for this office to be able to find that the meeting conditions violated the Open Meetings Act. "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).'" 12-OMD-131. Accordingly, the record before us is insufficient to establish that Danville Independent violated the Open Meetings Act in the conditions at the board meeting.
2. Order of Public Comments
Regarding the claims of manipulation of public comment, although it is not clear from the appeal, this allegation appears to be based on the chairperson's calling of public commenters out of order, and use of text messages during the meeting, which we address separately. The Open Meetings Act does not guarantee the right for the public to be able to comment. "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. " 95-OMD-99. "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. "Since the Open Meetings Act does not address the right of an individual to speak at public meetings, the Attorney General has consistently declined jurisdiction of issues relating to the deprivation of that nonstatutory right or requirements imposed by agencies to secure that nonstatutory right." 13-OMD-213 n.1. Accordingly, since Danville Independent was not obligated to take public comments at all, it cannot have violated the Open Meetings Act in any alterations in the order of public commenters.
3. Text Messaging During a Meeting
Regarding the text messaging by the chairperson during the meeting, mere text messaging by one member of a public agency during a meeting does not approach establishing a violation of the Open Meetings Act. The Open Meetings Act is violated when a quorum of a public agency discusses public business without complying with its requirements. No such allegation exists here.
4. Allowing Improper Public Comments
As to the claim that two individuals made improper personal comments, such claims are not within the purview of the Open Meetings Act. "The Open Meetings Act does not dictate specific procedural rules relating to the conduct of meetings." 03-OMD-035. "The Attorney General is 'not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]' in the context of an Open Meetings Appeal." 16-OMD-030. Whether particular comments made at public meetings, and a public agency's response to those comments, are proper is not a justiciable question under the Open Meetings Act.
5. Changing the Agenda
With respect to the claim that the agenda was misleading and manipulated, it is not disputed that the meeting was a regular meeting of the Danville Independent board, and an agenda is not required for a regular meeting or binding on an agency during a regular meeting. "This office has consistently recognized that KRS 61.820, governing regular meetings, does not expressly or impliedly require an agenda, and that the constraints inherent in a special meeting agenda . . . do not apply to regular meeting agendas voluntarily created. . . . Agencies are not bound by any limitation relative to discussion of, or actions on, matters not identified in a regular meeting agenda. " 07-OMD-094. "Because no agenda is required for a regular meeting under KRS 61.820, public agencies are not bound by any limitation relative to the discussion of, or actions on, matters with which they are entrusted in the course of those meetings." 13-OMD-213. Accordingly, even assuming Danville Independent changed its agenda or added an item to its agenda at the regular meeting, such changes do not violate the Open Meetings Act.
6. Board Members Not Reading Prepared Statements
The appellants also claim that three members of the board colluded and did not notify the other two that the vote on the superintendent's contract would be discussed. KRS 61.810(2) requires that "any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section." "The Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meetings requirements of the Act." Yeoman v. Commonwealth of Ky., Health Policy Bd., 983 S.W.2d 459, 474 (Ky. 1998). However, the only allegation made in support of a series of less than quorum meetings is that three board members read prepared statements and two did not. This is insufficient on its face to establish that a series of less than quorum meetings constituting a quorum occurred. Accordingly, we do not find that Danville Independent violated the Open Meetings Act in holding a series of less than quorum meetings for the purposes of evading the Open Meetings Act.
In summary, we do not find that Danville Independent violated the Open Meetings Act in: (1) meeting conditions, (2) changing the order of public commenters, (3) a board member text messaging during a meeting, (4) allowing allegedly inappropriate public comments, (5) changing or discussing items not on a regular meeting agenda, and (6) two board members not preparing written statements.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes