From the Central Kentucky News Journal
(Editor’s Note: Here’s a copy of the Attorney General’s Decision — AG OPINION ON OPEN MEETINGS)
The Taylor County Fiscal Court violated the Open Meetings Act by excluding a Central Kentucky News-Journal reporter from a public meeting, according to a decision from Kentucky Attorney General Daniel Cameron’s office.
At a regularly scheduled fiscal court meeting on May 12, CKNJ reporter Josh Claywell was asked to leave the Taylor County Courthouse where the magistrates and judge-executive were meeting in person.
Smith cited COVID-19 restrictions as the reason for Claywell’s ejection, as well as the fiscal court’s Facebook Live stream on the judge-executive’s page.
Claywell noted that he was wearing a mask and adhering to public guidelines for social distancing when requested to leave and then escorted out of the meeting.
The CKNJ sent a letter in June notifying Smith that the newspaper thought there was a violation of the Open Meetings Act.
In that formal complaint, the newspaper proposed that the fiscal court admit the mistake in an open and public session with media coverage, reconsider those matters that were discussed, and that any action taken as a result of the session be declared null and void. The proposal also asked that the court formally acknowledge that the media is permitted to appear at all future in-person meetings, throughout this pandemic and beyond.
Smith responded in a letter within the three working days required after receiving the complaint and denied the violation.
The fiscal court took the position that it did not violate the Act because, “Gov. (Andy) Beshear’s Executive Order prompting the closure of most government offices; Taylor County Judge Executive Order closed the Taylor County Courthouse to the public, as of March 18, 2020, and Attorney General Cameron issued OAG 20-05, enabling fiscal courts to conduct meetings by video teleconference.”
The CKNJ then filed an appeal to the attorney general’s office.
The decision from the attorney general’s office arrived last Friday, concluding that the fiscal court did violate the Open Meetings Act.
“In response to the public health emergency caused by the novel coronavirus, the General Assembly passed Senate Bill 150 (SB 150),” Assistant Attorney General Marc Manley wrote in the decision. “Containing an emergency clause, SB 150 became law upon the Governor’s signature on March 30, 2020. For the duration of the state of emergency, SB 150 is the controlling authority in instances where the public agency invokes its provisions.”
However, he noted, SB 150 only applies when a public agency conducts its meeting “by live audio or live video teleconference during the period of the state of emergency.”
Under the Open Meetings Act, a video teleconference is defined as “one meeting, occurring in two or more locations, where individuals can see and hear each other by means of video and audio equipment.”
Because the members of the fiscal court met in person and did not conduct the meeting via video teleconferencing, “SB 150 does not apply,” according to the decision.
“On May 12, 2020, the county held its regular fiscal court meeting, purportedly by video teleconferencing,” Manley wrote. “However, every fiscal court member appeared in-person at the meeting location. No member appeared by video teleconference.”
Because the fiscal court met in a physical location, the traditional requirements under Kentucky’s Open Meetings Act still apply, the decision states, requiring 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 meeting.”
“Having elected not to conduct its meeting using video teleconferencing under Senate Bill 150, the county was required to provide adequate space for members of the public, and media, to observe the in-person meeting being conducted,” Manley wrote. “By removing a member of the media from the in-person meeting, the county violated the [Open Meetings Act].”
Any party aggrieved by this decision may appeal it in circuit court, the decision states.