February 19, 1997

In re: Greg Hunsaker/Henderson County Board of Education

Open Meetings Decision

This matter comes to the Attorney General as an appeal by Greg Hunsaker in connection with his complaint filed against the Henderson County Board of Education.

In a letter to David McKechnie, the Chairman of the Henderson County Board of Education, dated January 28, 1997, Mr. Hunsaker complained about conditions involving the school board meeting of January 20, 1997. He stated that it was brought to the attention of the Board that some people could not hear and nothing was done. Mr. Hunsaker further stated that the meeting room site was inadequate as approximately 25 people were standing outside the room in the hallway and about fifteen more people were standing outside in temperatures ranging from 41 to 34 degrees. He requested that matters discussed at the January 20, 1997 meeting be discussed again at a meeting location which would be accessible to all those persons wishing to attend.

The attorney for the Henderson County Board of Education, John S. Hoffman, responded to Mr. Hunsaker in a letter dated January 29, 1997. He said that, in his opinion, the meeting was conducted in accordance with the Open Meetings Act. He stated that although the room was crowded the size of the crowd did not deter those who wished to speak. He referred to a sign-up sheet and said no one who desired to do so was denied the right to address the board of education. Mr. Hoffman also mentioned an upcoming public hearing concerning the facilities plan which was scheduled to be held at a particular junior high school.

In his letter of appeal to this office, received February 4, 1997, Mr. Hunsaker again mentioned accessibility or the lack thereof in regard to the meeting of January 20, 1997.

While the written response on behalf of the public agency to the complaint received under the Open Meetings Act was timely, it was deficient in all other respects. KRS 61.846(1) sets forth the duties and responsibilities of a public agency in regard to a complaint received under the Open Meetings Act. The public agency is required to determine whether it will remedy the alleged violation set out in the complaint. In addition:

An agency's response denying, in whole or in part, the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and a brief explanation of how the statute or statutes apply.

The public agency's response violated the Open Meetings Act in that its written answer to the complaining party did not address the specific issues of accessibility to the meeting, noise in the meeting room, persons outside the meeting room in the hallway, and persons outside the building on a winter night. In addition, the response did not cite a section of the Open Meetings Act in support of the public agency's position and it did not provide a brief explanation of how that particular statutory provision applied to the situation involving the public agency. See 96-OMD-262, copy enclosed, at page two.

KRS 61.820 states in part that all public meetings of all public agencies shall be held at specified times and places which are convenient to the public.

KRS 61.840 requires in part that all public agencies provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings.

It may be that on most occasions the site of the January 20, 1997 meeting would have been sufficient to accommodate the anticipated crowds. Since on this particular day the meeting site could not accommodate the number of people attending the meeting, the public agency was under a duty to make some attempt to correct the matter. Neither the Open Meetings Act nor decisions of this office specify the particular action an agency must take; rather, the agency's actions are dependent on the particular factual situation. It is not enough to concede that the meeting room was crowded. The public agency had an obligation to address the problems, particularly with regard to persons outside on a winter night and those in the hallway outside the meeting room. In addition, the public agency's duty to provide a place where the public can effectively observe a public meeting includes controlling the noise so people in attendance can hear what is said at the meeting. In this particular situation, there is no evidence that the public agency made any attempt to alleviate the problems described.

In 94-OMD-87, copy enclosed, this office said that a city did not violate the Open Meetings Act merely because everyone at a particular meeting site could not be admitted into the meeting room. In that situation the meeting was held in a facility which normally could accommodate all those desiring to attend and the city offered to allow the overflow crowd to view the meeting from another room by television. We concluded that because the city made reasonable efforts to accommodate the overflow crowd the Open Meetings Act was not violated. See also Gutierrez v. City of Albuquerque, 96 N.M. 398, 631 P.2d 304 (1981), where the court said the city met the requirements of the state open meetings law because the meeting was held in a facility designed to accommodate a large number of people and efforts were made to allow the excess crowd to listen to the proceedings by means of a radio broadcast and loudspeakers.

It is, therefore, the decision of the Attorney General that the board of education violated the Open Meetings Act because even if the board met in a facility that would accommodate the number of persons normally expected to attend such meetings, the board of education should have made a good faith effort to handle the overflow crowd so that persons in the hallway and outside the building could have observed the public proceedings.

A party aggrieved by this decision may challenge it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.

A. B. Chandler III

Attorney General

Thomas R. Emerson

Assistant Attorney General

Copies of this decision

have been distributed to:

Greg Hunsaker

8779 Highway 1078 South

Henderson, KY 42420

John S. Hoffman

Sheffer & Hoffman

300 First Street

Henderson, KY 42420

David McKechnie, Chairman

Henderson County Board of Education

1805 Second Street

Henderson, KY 42420