2018 revision to Open Meetings Law: A misstep in the right direction

COG2

We were surprised to learn that one day before the now famous Senate effort to quietly undermine Kentucky’s Open Records Law by redefining the term “public record” to exclude “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts,” efforts were underway in the House to modify the Open Meetings Law as well.

Unlike the Senate amendment to HB 302, HB 592 appears to have been well intended. Unfortunately, it was ill conceived.

Kentucky has had a problem since Skype was introduced in the early 2000s. Public officials who were unable to attend in person the public meetings of the agencies they served assumed that they could use Skype to participate in those meetings from remote locations.

Unlike remote telephone participation – which did not satisfy the public’s right to see and hear all members who participated in a public meeting and was therefore rejected by the attorney general – members skyping in from vacations spots, hospitals, and in one case, the Middle East (to which a city official had been deployed), could Skype in and continue to serve their agencies remotely. Their constituents could both see and hear them.

Problem solved, right?

Wrong. The Open Meetings Law, last amended in 1994, contained no provision authorizing remote participation, and there was considerable resistance to the suggestion that the law needed to be updated to, among other things, make effective use of newer technology.

Therefore, if challenged, officials who remotely participated in public meetings relied on a 1994 statute authorizing video teleconferencing. Long before Skype was introduced to the American public, the General Assembly enacted KRS 61.826 for the purpose of enabling public agencies that, in most cases, served a statewide constituency, to conduct one meeting in two or more locations where individuals could see and hear each other by means of video and audio equipment.

Parents who resided in Paducah but whose children were students at the University of Kentucky could see and hear a video teleconferenced Board of Trustees’ meeting at a meeting site in Paducah as long as the board adhered to several statutory requirements.

The board could not conduct a closed session during a video teleconferenced meeting; the board was required to give notice of the video teleconferenced meeting as it would any public meeting, but the notice had to state that the meeting would be a video teleconference and to precisely identify the video teleconference locations including which, if any, was the primary location; the board was required to observe the same procedures relative to “participation, distribution of materials, and other matters” at all video teleconferenced locations; and the board was required to suspend any video teleconferenced meeting if the video or audio broadcast was interrupted.

Whatever the rationale for these statutory requirements, they posed serious problems for public agencies who merely wished to Skype in a remote member. One of the most serious was the prohibition on closed sessions during video teleconferenced meetings. Another was the requirement that each video teleconferenced location be treated as a meeting site to which the public must be admitted. The latter was particularly troublesome for the magistrate in the hospital or the council member in Kuwait.

Skyping was the square peg to video teleconferencing’s round hole.

In a letter – not a formal opinion -- to the Jefferson County Public Schools issued in 2014, the attorney general approved the use of the video teleconference statute as legal justification for remote participation as long as all requirements of the existing statute were met. This was not a perfect solution as agencies continued to conduct closed sessions in meetings “attended” by an absent member using Skype and often excluded the public from the meeting “location” from which the member Skyped.  The use of Skype exposed these agencies to a successful legal challenge.

In its 2017 proposal for legislative revision to the Open Meetings and Records Laws, the Bluegrass Institute Center for Open Government identified the practice of remote participation under the existing video teleconference statute as one of many areas that demanded modernization.

Since we issued the proposal, we have identified two occasions on which state universities – UofL and KSU – violated the law by conducting closed sessions while members attended by Skype or another form of video chat.

The square peg/round hole problem persisted.

Enter the Kentucky General Assembly. On February 27, Rep. John Carney, R-Campbellsville, introduced HB 592 to insert gender neutral language into KRS 156.690 by adding the phrase “or her” to the requirement that the Kentucky Board of Education  “initiate a program to assist and encourage each certified teacher to purchase a computer for his or her own personal use.”

What was delivered to the governor on April 14, following passage in the House by a vote of 81-11 and in the Senate by a vote of 51-34, was a law that deleted the bill’s original provisions and – among other things – eliminated the prohibition on closed sessions and amended “KRS 61.826 to require a public agency to precisely identify a primary location of a video teleconference meeting.” It was renamed “AN ACT relating to public agencies.”

We support what we believe to be the underlying intent of the newly enacted law, but it fails to achieve the apparent goal. Had it been clearly identified as “an act amending KRS 61.826 relating to video teleconferencing of public meetings,” efforts could have been made to preserve the original intent of the video teleconferencing statute and address the wholly unique issues associated with remote participation by means of separate legislative enactment. Transparency in the legislative process would have yielded a new law ensuring greater transparency in agency practice.

Instead, the amendment to KRS 61.826 eliminates the prohibition on closed sessions. This poses no known problem for remote participation, but it may create logistical challenges for video teleconferenced meetings.

It requires public agencies to “identify a primary location of the video teleconference where all  members can be seen and heard and the public may attend.”  It is unclear whether the amendment’s goal is to eliminate the requirement that the location from which the member Skypes be treated as a meeting site to which the public must be afforded entrance. If so, this wholly undermines the intent of the video teleconference statute, rendering the original statute – which clearly serves a salutary purpose -- a nullity.

If not, the amendment requires no notice to the public of the location of the remote meeting site, effectively rendering public attendance impossible. Only if, by chance, a person learns the location from which the agency member is Skyping must he or she be admitted to the remote meeting site which may or may not be subject to “the same procedures with regard to participation, distribution of materials, and other matters” as those at the primary location.

The new law is confusing and, unfortunately, out of step with the spirit and letter of the original video teleconferencing law. It’s a step in the right direction, but a misstep.

As the House and Senate face the challenges of modernizing our outdated Open Meetings and Records Laws, they would do well to examine existing law in states that have already met this challenge. Many have. The Ohio Newspaper Association, for example, has developed a best practices document that identifies necessary components of a remote participation statute. Additionally, legislators should be transparent in their efforts to modernize the laws and solicit input from Kentucky’s open government veterans who are “committed to preserving what is best in the open meetings and open records laws and encouraging lawmakers, public officials, access advocates and the public to think anew.”