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'Meeting' has broad definition under state law By KIM GREENE "That was just an education session," came the response. Funny, it looked like a violation of the Open Meetings Act to the reporter. She didn't know for certain if any kind of vote had been taken, but she sure did think that public business had been discussed behind closed doors. What's the rule? Let's start with a review of the definition of "meeting," as found in KRS 61.805(1) of the Kentucky Open Meetings Act: "Meeting" means all gatherings of any kind, including video teleconferences, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. If "all gatherings of every kind" are meetings, can I get in to them? Perhaps not all meetings, but the law does entitle you to attend: 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, except for the following [specific exemptions]. KRS 61.810(1). This column is not going to discuss the exemptions contained in the statute. Instead, we're going to focus today on what makes a gathering a meeting that you are entitled to attend. It's a meeting when members of the city commission gather in an office prior to their regularly scheduled public meeting and discuss the agenda items for the upcoming meeting. It's a meeting when members of the county school board get together at the country club where one of them is a member to discuss a system-wide controversy. And it's a meeting when the county health department board gathers at a remote state park for an informational session on communicable diseases. In each case, these public agency members are discussing public business; if a quorum of the public agency is present at any of these gatherings, then members of the public are entitled to be present as well. In 1992 a new section was added to KRS 61.810 (the exemptions section) to deal with a public agency's attempt to avoid the "quorum" issue. In that section, the General Assembly specifically said that a public agency cannot get around its obligation to meet in public by conducting a series of meetings at which less than a quorum attends each gathering if the members attending one or more of the meetings collectively constitute a quorum of the public agency and the series of meetings are held for the purpose of avoiding the rule that meetings be open to the public. In that event, each of those meetings of less than a quorum must be open. Maybe the more likely scenario is that you would find out about this series of meetings after the fact. In that case, it will obviously be too late for you to try to attend any or all of them. Your recourse then is either enforcement by administrative procedure or judicial action (more on that in a minute). The section on less-than-quorum meetings makes it clear, however, that the rule does not prohibit discussions between individual members of a public agency where the purpose of the discussions is to educate the members on specific issues. Although there are not yet any cases or Attorney General opinions interpreting this language, the interpretation must be a narrow one to be consistent with the purpose of the statute. In other words, "discussions between individual members" must literally mean one-on-one discussions. A more difficult question is discerning the purpose of these one-on-one discussions — is it to educate, to pass on useful, general information on an issue, or is the purpose to obtain a commitment for an upcoming vote on that issue? The former is permissible but the latter is not. Kentucky law has been clear for a long time that straw polls of public agency members — whether done in person or by telephone — violate the law. A vote that has to be taken in open session cannot be previewed by straw poll. Doing so deprives the public of the opportunity to observe public officials in the decision-making process. Likewise, a public agency may not tabulate votes secretly or otherwise take a secret ballot on any issue. Again, the intent of the law is to allow the public to monitor the actions taken by public officials. Secret ballots deprive the public of that opportunity. Back to the issue of discussions to educate a member on specific issues. Recently, a five member public agency spent over half an hour in the middle of a public meeting in whispered discussions. There were about 20 citizens and news media in attendance. They just sat there and watched these public officials whispering among themselves, but of course could not hear any of the discussion. They had no way of knowing, then, what the public agency was talking about, except that the whispering began as soon as the group turned to the agenda item concerning the annual budget. Surely, no one will argue that discussion of a public agency's proposed budget is anything but public business. Surely, no one ( but that public agency) would argue that a half hour interruption in the middle of a public meeting was discussions between individual members for the purpose of educating them. What that public agency did was conduct a closed session in the middle of their regularly scheduled public meeting. They were wrong. A discussion of the budget is not among the exemptions to the general requirement of openness. And even if it were, this public agency made no effort whatsoever to comply with KRS 61.815, which outlines the requirements for conducting closed sessions. Specifically, there was no motion made to go into executive session, no identification of the exemption which justified a closed session and no vote on the motion. Often there is a legitimate basis for a public agency to go into executive session during its regularly scheduled meeting. When it follows the procedures outlined above, limits itself to the announced topic and takes no final action during the executive session, it has complied with the requirements of the Open Meetings Law. Likewise, there are often legitimate reasons why a public agency would call a special meeting to deal with a matter that cannot wait until the next regularly scheduled meeting of the agency. When that happens, KRS 61.823 requires the public agency to provide written notice of the special meeting. The written notice must contain the date, time and place of the special meeting. It must also contain the agenda for the special meeting. Discussions and actions at the meeting must be limited to items listed on the agenda in the notice. Special meetings are the only occasion for which the law requires pre-published agendas. The theory is that the public is on notice of regularly scheduled meetings and knows that any topic may be placed on the agenda. But a public agency may not sandbag the public by announcing a special meeting for one purpose and talking about something else. The 24-hour written notice required for special meetings may be delivered personally, mailed or sent by facsimile. It will only be sent, however, to media organizations which have filed a written request to receive such notices. We recommend that you renew your requests at the same time each year so there is no question that you have an up-to-date request on hand. Although it is not used very often, a 1994 amendment to the Open Meetings Law provides for video teleconference meetings of public agencies. The same notice requirements apply to these meetings. In addition, the notice must specifically state that the meeting will be a video teleconference and precisely identify the video teleconference locations as well as the primary location of the meeting. So long as members of the public may attend and observe at one of these locations, the meeting is lawful. If, during the meeting, there is an interruption in the video or audio broadcast of the meeting, the meeting must be suspended until communication is restored. Finally, no meeting can be partially open. That is, a public agency may not pick and choose which members of the public may attend its meeting. No matter how miffed a public agency may be at your newspaper's coverage (or failure to cover) that agency's activities, the agency may not single out your newspaper for exclusion from an otherwise public meeting. Nor may the agency single out one news organization or select members of the public to attend the meeting while excluding the rest. If you believe you have been excluded improperly from a public meeting, the law provides you with two enforcement options. First, you can choose to enforce the law by administrative procedure. To do this, you must submit a written complaint to the presiding officer of the public agency. That complaint must state (1) the date of the meeting, (2) what constituted the alleged violation of the Open Meetings Act, and (3) what the public agency should do to remedy the alleged violation. For example, you could suggest that the public agency conduct the discussion again at a public session to allow the public to observe the discussion and the agency's vote on the issue. The public agency has three business days to respond to the written complaint and let you know whether it will remedy the alleged violation. If the agency denies the suggested remedy, the agency must include a statement of the specific statute supporting its denial and a brief explanation of how the statute applies. If you wish the Attorney General to review a public agency's denial of your written complaint, you must forward a copy of your written complaint and a copy of the written denial to the Attorney General within 60 days after receiving the written denial. If the public agency fails to give you a written denial, you must forward a copy of your written complaint within 60 days from the date you submitted it to the presiding officer of the public agency. You may also appeal to the Attorney General if the public agency agrees to remedy an alleged violation but its efforts to do so are inadequate in your view. In that case, you must submit to the Attorney General a copy of your written complaint, a copy of the agency's response, and your written statement of how the public agency has failed to remedy the alleged violation. Whichever party the Attorney General disappoints has 30 days from the date of the Attorney General's opinion to appeal the decision to circuit court. As an alternative to that procedure, you may bypass the Attorney General altogether and file suit in circuit court. You must first go through the procedure of submitting a written complaint to the public agency and giving them an opportunity to cure the defect. You must file the lawsuit within 60 days from receipt of the agency's written denial of your complaint or, if the agency failed to respond, within 60 days from the date you submitted the written complaint. Of course, peaceful coexistence between public agencies and the news organizations which report on them is always preferred. But in those instances where you are trying to determine whether an agency has failed to live up to its obligations under the Open Meetings Law, keep in mind the General Assembly's intent when it enacted the statute: The General Assembly finds and declares that the basic policy of [the Kentucky Open Meetings Law] is that the formation of public policy is public business and shall not be conducted in secret and the exemptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed. KRS 61.800. If you have questions about meetings, or any other topic covered by the Hotline, don't hesitate to call.
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