Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Kentucky Board of Education ("KBE") violated the Open Meetings Act ("Act") when public attendees to the KBE's June 6, 2018, meeting were required, by an officer of the Kentucky State Police Facilities Security Branch, to provide identification at the entrance of the building where the meeting was held and were required to wear photographic identification while in the building. For the reasons stated below, we are unable to conclusively determine that the KBE violated the Open Meetings Act. 01-OMD-23 is modified to the extent that it holds that no violation occurs absent proof that a public agency directs identification procedures as a requirement for entry to building where meeting of public agency is held.
On June 15, 2018, Rob Mattheu ("Appellant") sent a letter to Milton Seymore, Chairman, KBE, complaining that the KBE had violated the Act, specifically KRS 61.840. 1 Appellant stated that he attended the June 6, 2018, meeting of the KBE, and that, when he arrived in the lobby of the building where the meeting was held, he advised the "front desk" that he was there to attend the KBE meeting. Appellant stated that he was required to sign in and provide a photo ID. He was then required to wear a "name tag" while in the building, and was escorted to the meeting by an employee of the Department of Education. He stated that "[s]everal other people who entered the building after [him] were required to do the same thing." He complained that requiring attendees to the meeting to show identification at the front desk and wear name tags while in the building were violations of KRS 61.840. Appellant requested that the KBE remedy the alleged violations by acknowledging that it was in violation of the Act and stopping the requirement of identification for attendees, "and/or moving the meetings to a location and/or time where identification is not required to attend. "
Milton Seymore, KBE Chair, timely responded to the complaint by letter dated June 20, 2018. The response stated that the KBE, and the Kentucky Department of Education ("KDE"), are located on the 5th floor of the "300 Building," Sower Boulevard, Frankfort, and that other state agencies also occupy the building, including, as examples, the Education and Workforce Cabinet and the Department for Environmental Protection. The response stated that employees of the Kentucky State Police ("KSP") are stationed at the front entrance of the building and are responsible for admitting visitors into the building based on "established building polices."
Once a person has checked in at the KSP desk, an agency staff member is contacted to take visitors to their destination within the 300 Building. Concerning visitors to KBE and KDE, KDE staff generally ride the elevator with visitors to the 4th or 5th floor and then direct visitors to their destination. in this case the KBE board room.
For KBE board meetings, no additional check-in is required upon entering the board room, Prior to entering the KBE board room individuals are not required to sign-in; show identification; establish he or she properly checked into the building with KSP; verify he or she is wearing the security name tag provided by KSP; or otherwise identify themselves. The KBE placed no condition for attendance on anyone who attended the June 6, 2018 meeting, nor did it require individuals to identify themselves in order to attend the meeting.
The Board denied the allegation that it violated KRS 61.840, and chose not to remedy the alleged violation as requested by Appellant. Appellant then filed his appeal with this office.
On June 29, 2018, Ashley Lant, Assistant General Counsel, KDE, responded to the appeal on behalf of the KBE. Ms. Lant stated that the KBE relied on the earlier response by Mr. Seymore and further stated that the procedures for visitors to the 300 Building (showing identification, signing in, and receiving a name tag) are safety measures carried out by the members of the KSP Facilities Security Branch. 2 She also stated that these requirements were not implemented by the KBE, but that "these procedures come within the purview of a condition 'required for the maintenance of order.'" Ms. Lant also stated that the "security procedures are not monitored by the KBE or KDE."
Pursuant to the authority granted this office by KRS 61.846(2) to "request additional documentation from the agency[,]" we contacted Ms. Lant in order to determine specifically whether the KBE instructed the security officers at the 300 Building to require the procedures at issue as a condition of attending the KBE meeting. Ms. Lant stated that the KBE did not require those procedures as a condition of attending the KBE meeting on June 6, 2018. Jennifer Payne, Office of Legal, Legislative and Communication Services, KDE, at Ms. Lant's direction, spoke with the KSP Facilities Security Branch officer at the 300 Building on June 29, 2018. According to Ms. Payne, the KSP officer generally stated that "visitors are required to show their driver's license. The license is scanned into their [KSP's] system, information on visitor is logged and a visitor badge is issued. The badge is good for the day. The visitor is asked to return the badge when they leave, at which time it is scanned again to show they have left the building." Ms. Lant also provided a sign-in sheet "which is only used when their system is down or sometimes on weekends."
Analysis . In 01-OMD-23, we decided an appeal on very similar facts and complaint as the current appeal. In that appeal we were asked to determine whether the Kentucky Board of Emergency Medical Services violated KRS 61.840 by conducting its January 4, 2001, meeting in the Public Health Auditorium of the Human Resources Building, a secure state facility at which visitor registration is required. We decided that, absent proof that the Board of Emergency Medical Services instructed the security officers attached to the Human Resources Building to require identification as a condition of attendance at the meeting , there was no violation of the Open Meetings Act. "Because the record is devoid of proof that identification requirements were imposed on meeting attendees at the prompting, or on demand, of the Board of Emergency Medical Services, we affirm the Board's position." 01-OMD-23, p. 3. We hereby modify the analysis of 01-OMD-23 to better conform to the requirements of KRS 61.840.
Even where there is an absence of proof that an agency directed the identification procedures at a building entrance, a violation of the Open Meeting Act may occur where a member of the public is denied access to the meeting for refusal, failure, or inability to comply with the identification procedures at the building entrance. Under the identification procedures required at the 300 Building, a member of the public could be denied access to the building because the person simply cannot, or chooses not to, produce identification for the security personnel. Although KBE stated that "these [identification] procedures [at the building entrance] come within the purview of a condition 'required for the maintenance of order[,]'" KBE did not explain why or how these identification procedures are required for "maintenance of order" as allowed for by KRS 61.840.
In 16-OMD-124, we reviewed the applicability of the "maintenance of order" provision of KRS 61.840 and stated:
The Attorney General has addressed this provision of the Open Meetings Act in several decisions regarding the question of whether the conduct of a member(s) of the public during a public meeting was disruptive enough to interfere with the maintenance of order and to justify the removal of citizen(s). Id. ; 08-OMD-249. None of the decisions summarized in 08-OMD-249 were in favor of the public agency. See 14-OMD-022.
16-OMD-124, p. 14.
In the current appeal, there is no claim that the members of the public who wanted to attend the KBE meeting were disruptive in any way that threatened the maintenance of order to such a degree that identification was required to be allowed entry to the 300 Building.
Even where there may be a colorable claim that the "maintenance of order" requires restricting access to a state-owned or -leased building to members of the public, such restrictions may run afoul of statutory requirements if they are not promulgated through the administrative regulation process. 3 KBE did not refer to any administrative regulation as a basis for the 300 Building's identification procedures. Without further facts and explanation, we cannot accept KBE's unsupported claim that the 300 Building's identification procedures were required for the "maintenance of order" as allowed by KRS 61.840.
Under the facts of this appeal, where no member of the public was refused admission to the 300 Building for failure, inability, or refusal to provide identification to the security officers at the 300 Building, we are unable to conclusively determine that a violation of the Open Meetings Act occurred. 01-OMD-23 is hereby modified to the extent that the analysis to determine whether a violation of the Open Meeting Act occurred under these circumstances, is not whether there is an absence of proof that a public agency directed security officers to require compliance with identification procedures, but whether any person is not allowed to attend the meeting due to the requirement to identify himself to gain entry to the building where the meeting of the public agency is being held.
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
1 KRS 61.840 states, in pertinent part: "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."
2 The Facilities Security Branch of the Kentucky State Police ensures a safe and secure environment for public officials, employees and visitors in state-owned or leased buildings and facilities in Frankfort, Kentucky including the Capitol and the Capitol Annex[,]" http://ksponline.org/recruit/ksp_facilities_security_officer.html (last visited July 7, 2018).
3 Although not an Open Meetings Decision, OAG 18-09 stated the opinion of this office that it was a violation of Kentucky law to restrict access to the State Capitol building based on a rule or policy that has not been promulgated by the administrative regulation process.