In the third installment of our Sunshine Week series, we focus on the citizen open government advocate’s use of the Kentucky Open Meetings Act to advance the public’s right to know. Public agencies exist, the legislature has declared, “to aid in the conduct of the people’s business.”  The rights and duties secured by the Open Meetings Act, although less frequently litigated than the rights and duties secured by the Open Records Act, are no less important. These frequently asked questions, and their answers, provide an aid to understanding -- and making optimum use of -- the law.

1. What is the Open Meetings Act?

The Open Meetings Act (OMA) is the Kentucky law that guarantees your right to notice of state and local public agency meetings and actions, and your right to attend those meetings and observe those actions, without regard to your identity. OMA states that all meetings of a quorum – or majority – of the members of a public agency at which public business is discussed or action is taken must be open to the public at all times, and no conditions for attendance – such as a requirement that you identify yourself  -- can be imposed. It requires public agencies, and committees of agencies, to conduct their meetings at “times and places convenient to the public” and provide meeting rooms that provide adequate space, seating and acoustics.

1. Does OMA favor the public’s right to know about and attend meetings?

OMA recognizes that “the formation of public policy is public business and shall not be conducted in secret.” Like the 14 exceptions to the public’s right of access to records under the Open Records Act (ORA), the 13 exceptions to the public’s right to attend meetings under OMA must be “strictly construed.” Kentucky’s courts have recognized that “The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions” and that the “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.”

1. What state and local agencies are subject to OMA?

Like ORA, OMA broadly defines the term “public agency” to include state and local government boards, commissions and authorities; state and local legislative boards, commissions and committees; county and city governing bodies and school district boards; university policy making boards; all state and local government agencies that are created by statute, executive order, ordinance, resolution, or other legislative act; an “entity” whose governing body is appointed by a public agency; and any committee – including an advisory committee –established by a public agency. The definition of public agency is slightly narrower under OMA than it is under ORA because it omits state or local officials and private “bodies” receiving public funding.

1. What is a meeting?

The term “meeting” is also broadly defined in OMA to include “all gatherings of every kind . . . regardless of where the meeting is held.” It includes “informational or casual gatherings held in anticipation of or in conjunction” with a meeting.

There are two kinds of meetings under OMA:  regular meetings and special meetings.

A regular meeting is any meeting that appears on the regular meeting schedule which every public agency must adopt and make available to the public. If you are uncertain when an agency regularly meets, you may ask the agency for a copy of its regular meeting schedule, and the agency must provide you with a copy.  Agencies are not required to follow, or even to have, an agenda for a regular meeting, and they can add or subtract items in the course of the regular meeting. There are no notice requirements for regular meetings other than the requirement that the agency adopt and make available its regular meeting schedule.

A special meeting is a meeting that does not appear on the regular meetings schedule or a regular meeting that is rescheduled. These meetings are often referred to as “called” meetings. Agencies must give notice, as described below, of special meetings to agency members and the media. The meeting notice must include the date, time, place and agenda for the special meeting, and the agenda must include very specific agenda items – “old business,” “new business,” “open to floor,” etc., are not sufficiently specific. The agency must stick to the agenda and cannot add or subtract agenda items.

1. What kind of notice is the agency required to give before it holds a special meeting?

At soon as possible, but at least 24 hours before the special meeting, a public agency must hand deliver, fax or mail written notice, as described above – consisting of date, time and place of the special meeting and the agenda for the meeting – to each public agency member and any media organization that has requested notification of special meetings. The special meeting notice can be sent by email if the agency member or media organization has submitted a written request for email notice.

In addition, the agency must post the meeting notice in a “conspicuous place” in the building where the meeting will be held, and the building where the agency has its headquarter, as soon as possible but at least 24 hours before the special meeting.

1. With respect to meetings, what conduct does OMA prohibit?

OMA prohibits secret meetings of a quorum (majority) of the members of a public agency in which public business is discussed or action is taken.

OMA also prohibits a series of less than quorum meetings of the members of a public agency to discuss public business or take action if the purpose of the less than quorum meetings is to avoid OMA. These meetings are often referred to as “floating,” “rolling” or “serial” meetings. The fact that a quorum is not present at any one of the meetings does not excuse the meeting if the members attending one or more of the meetings, added up, constitute a quorum.

1. What is the difference between an open meeting and a closed (executive) meeting?

Like ORA, OMA begins with a presumption that all meetings of a quorum of the members of a public agency where public business is discussed or action is taken must be open to the public. OMA does, however, recognize 13 exceptions that an agency can rely on to conduct a closed meeting and exclude the public. These exceptions must be “narrowly construed and applied . . . so as to avoid improper or unauthorized closed, executive or secret meetings.” We will analyze the most commonly cited exception in the final installment of this Sunshine Week series.

1. What kind of notice must the agency publicly give before it goes into closed session?

If there is a legal basis, an agency may go into closed session in the course of an open meeting. The agency must, however, observe specific statutory requirements. It must publicly identify in the open meeting  the “general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session.” The exceptions are found at KRS 61.810(1)(a) through (m). As noted, we will examine a few of them in tomorrow’s installment. A vague reference to “personnel” or “litigation” does not satisfy this requirement.

Motion must be made in open session, and carried by a majority vote, to go into closed session.

The agency cannot discuss anything in closed session that was not “publicly announced” in open session, and it cannot take final action in closed session.

1. What other requirements does OMA impose on public agencies?

Public agencies, including committees, must create minutes of all meetings that contain “an accurate record of votes and actions taken at such meetings.” The minutes must be “open to inspection no later than immediately following” the agency’s next meeting.

Recordings of public agency meetings, created by the agency, are available under ORA within three working days of an open records request.

Public agencies are required to permit news media coverage, including recording the meeting, and the right to record extends to citizens.

1. If I observe a violation of OMA in the course of a public meeting, am I required to publicly object to the violation in order to later legally challenge it?

OMA does not require a citizen who witnesses a violation to publicly object. The media is encouraged to and often does, and you may or may not do so as you see fit. You do not, however, waive your right to challenge the agency’s violation of OMA if you do not publicly object.

We conclude these installments tomorrow with a look at the most common violations of OMA, in particular, improper closed sessions, and how you, as a open government citizen advocate can challenge these violations and vindicate the public’s right to know.