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Amye Bensenhaver

Kentucky Lantern

“The purpose of open meetings laws is to provide a window, not a weapon for political sparring.” — Kentucky Court of Appeals ruling by Chief Judge Larry E. Thompson, Judges Kelly Mark Easton and Annette Karem in Campbell County Board of Education v. Ken Moellman Sr. and Noam Heim

An open meetings challenge to policies requiring masks at public meetings was inevitable from the moment COVID-19 reached Kentucky in March 2020.

This is because the open meetings law states that “(n)o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency.” A public meeting mask requirement as a condition of in-person attendance seemed to fall squarely within this prohibition.

No mask + no admission = no can do.

A flood of executive orders, regulations, court orders, and legislative actions cast doubt on this deceptively simple formula. The open meetings law found itself at the center of a legal and political free for all.

Well into the pandemic, a legal challenge was, in fact, raised in a case involving Ken Moellman and the Campbell County Board of Education.

On Aug. 25, 2023, the Kentucky Court of Appeals affirmed Campbell County Circuit Judge Julie Reinhardt Ward’s ruling that the board violated Kentucky’s open meetings at four school board meetings in August and September of 2021, by requiring that all in-person attendees wear a mask or other facial covering. The unanimous appellate court panel nevertheless reversed the circuit court’s decision to void the actions taken by the board at those meetings and its decision to impose statutory fines on the board.

The court’s opinion moves us one step closer to final resolution of this issue. However, a trip to the Supreme Court, according to the complainant’s counsel, is likely if the high court can be persuaded to grant discretionary review.

Background

For some time after the start of the COVID-19 emergency in March 2020, the Campbell County Board of Education held meetings via videoconference (under a temporary statutory modification to the open meetings law).

At some point, the board resumed in-person meetings, but required masks at all such in-person meetings. Moellman did not specifically challenge the mask requirement prior to the Aug. 9, 2021, meeting.

Moellman attempted to attend each of the subsequent challenged board meetings in person, but he was denied entry because he refused to wear a mask.

On Sept. 21, 2021, Moellman sent a written open meetings complaint to the board in which he alleged that the mask requirement was an impermissible condition on attendance which violated the open meetings prohibition on imposing conditions on attendance ‘other than those required for the maintenance of order(.)’

(Moellman also argued, we are told, that his exclusion from the meetings violated KRS 61.810(1) — the fundamental mandate of the open meetings law, declaring that “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.”)

To remedy the violation, Moellman demanded that the board rescind the mask requirement, redo actions taken at those meetings, and apologize.

The board denied that the mask mandate violated the open meetings law, arguing that masks were required to maintain order. In its defense, the board noted that it had followed the executive orders, court orders, regulations, and school operational plan that had been in place. The board also noted that the meetings could be viewed via live-stream. The board refused to implement the remedies Moellman proposed in his complaint.

Moellman immediately filed suit.

The circuit court opinion

Following briefing and a hearing, the circuit court held that the board violated the open meetings law at four of the meetings in question. The circuit court found no violation of the law at the Aug. 16 and 18, 2021, meetings because there was a valid executive order in place requiring masks to be worn in schools.

The circuit court determined that there was no legal justification for requiring masks at the meetings conducted on the remaining dates, that masks were not necessary for the maintenance of order at the meetings, and that therefore the mask mandate was a violation of the open meetings law. The court awarded Moellman the statutory fines, to be paid by the board, and voided the actions taken at the meetings. It later awarded attorney fees and costs.

The Court of Appeals opinion

In an opinion issued Friday, Aug. 25, the Court of Appeals agreed with the circuit court that the mandatory mask requirement for in-person meetings was defensible only to the extent it was consistent with a then current and enforceable executive order  specifically, the Aug. 16, and Aug. 18, 2021, meetings — KRS 61.840 notwithstanding.

The appellate court also agreed that the remaining challenged meetings — those occurring when there was no valid order or regulation in place — violated the KRS 61.840 prohibition on conditions on attendance at public meetings and therefore the open meetings law.

The Court of Appeals reversed the circuit court’s decision to void any actions taken at these meetings and to impose statutory fines. The unanimous panel agreed with the board that the penalty provision of the open meetings law, KRS 61.848(5), does not authorize a court to void actions taken in public meetings which violate KRS 61.840, the statute the board was found to have violated, and in the absence of board “willfulness” warranting an award of fines, costs, and attorney’s fees.

(This is the crux of Moellman’s likely request for discretionary Supreme Court review. His attorney, Chris Wiest, advises us that “that aspect of the decision was mistaken.”)

A troubled court

Whether mistaken or not, the court clearly struggled with the circumstances out of which the open meetings appeal emerged — the chaos, rancor, mistrust, accusations, recriminations, bitter debate, and seemingly endless litigation — all stoked by fear of the unknown.

Pages 12 through 14 of the appeals court’s opinion summarize the utter confusion of those days.

Perhaps the court says it best, nearing the midpoint of its decision, and observing with a hint of reluctance:

“It is doubtful that the General Assembly would have had cause to consider the impacts of a pandemic when enacting the Open Meetings Act. Maintaining public health generally would not have been the policy addressed by an open meetings law. The importance of avoiding spread of disease was in the realm of other laws. We see the interaction of these two policies here. The public health was regulated through the competing executive and court orders and legislative actions. For this reason, we excuse, as did the circuit court, any issue with the order provision of the open meetings law for those meetings during which a public health provision governed.

“Once the public health provision no longer applied, we must consider only the authority of the Open Meetings Act to maintain order. We then conclude the circuit court did not err in its legal conclusion that the Board violated the Open Meetings Act by making a mask a condition of attending the in-person meetings on those occasions when there was no separate legal basis for doing so.”

Prognosis for participatory public meetings post-pandemic

The open meetings law was enacted in an era when the General Assembly established the public’s interest in participatory government as its highest priority. But for all its good intentions in 1974, it could not have anticipated a pandemic or the need to enact laws that ensured public participation in public agency meetings during a pandemic. The open meetings law suffered in the chaos of the pandemic, and temporary laws later made permanent, forever subordinating public rights to agency convenience.

The clearest example: Kentucky’s video teleconferencing bill, KRS 61.826. Enacted in 1994 to extend opportunities to the public to attend public meetings at remote video teleconferencing locations, the law was radically altered in 2022 to authorize agencies to make the unilateral and unrestricted choice to conduct exclusively in-person or exclusively video teleconferenced meetings, without regard to the public’s interests, and thereby keep the public at bay. The law has suffered recurring insults at the hands of Attorney General Daniel Cameron. Add to this agency defiance, disdain, and dismissal of the open meetings law.

The open meetings law has not yet fully recovered and may never fully recover. Selfish and self-serving politicians have seen to that.