April 1, 2020

SB 150 and the Kentucky Office of Attorney General Opinions

Open Meetings During the Pandemic

On March 25, 2020, Governor Andy Beshear issued Executive Order 2020-257 suspending in-person government activities unless necessary to protect or sustain life. This order should be interpreted broadly to postpone in-person meetings of city legislative bodies and their various boards, commissions, and other authorities unless they are related to maintain necessary government activities. During the state of emergency declared by Governor Beshear on March 6, 2020, cities have alternatives for in-person meetings.

Senate Bill 150 became effective on March 30, 2020 upon the Governor’s signature. This legislation provides a temporary exception to the Open Meetings Act to allow public agencies that lack the technological capacity and availability to video teleconference to conduct meetings by audio teleconference. Any meeting of public agency conducting a public hearing or where any other type of testimonial evidence is proffered must use video teleconference. The Kentucky Office of Attorney General (AG) issued an advisory opinion on March 31, 2020 providing additional guidance on SB 150 as it pertains to open meetings.

Video Teleconference

If a city has the technological capacity and availability of video teleconferencing, it must utilize this method to conduct its meetings. To use video teleconferencing, cities must provide a notice that states that the meeting will be held by video teleconference and detail the mechanism by which the video teleconference can be accessed, such as a web address, link, television channel, or other marker that provides public access to see and hear the meeting. Further, the notice must conform to the 24-hour time frame and other transmission and posting requirements of KRS 61.823 for special meetings. This rule applies whether the meeting is a special or regular meeting that is being teleconferenced. A detailed agenda must be included in the notice and only those subjects listed on the meeting agenda can be discussed, unless it is a regular meeting. If at any time the video or audio is disrupted, the meeting must be discontinued until the video and audio are restored in full.

It is also important to note that if a quorum of the legislative body or other public agency is meeting in person, media must be permitted within the location of the meeting of the physically present quorum; however, the general public may still be excluded. There are many internet-based options for video teleconferencing that are relatively user-friendly. Microsoft Team, Zoom, and Go To Meeting are a few common options available that can be used with a laptop or smartphone.

For meetings and hearings of the various boards and commissions, SB 150 contains temporary provisions that enable continued service if the CDC and Kentucky Department for Public Health social distancing guidelines are maintained. Hearings that require testimonial evidence must be conducted by video teleconference. Persons offering testimony in the record are deemed present along with all parties to the hearing if they can be seen and heard in real time through video teleconference. Any documents resulting from a hearing conducted under these exceptions that require official signatures for execution can be executed, acknowledged, or notarized in counterpart. These pieces together shall be taken as a single document. This means that any agreements, orders, settlements, or official documents that require more than one signature can be signed separately by the necessary signatories and serve to execute the official document as if it had been signed in one document.

Audio Teleconference

Under SB 150, cities that lack the technological capacity and availability to video teleconference can now conduct audio teleconference meetings as a temporary exception to public meeting requirements.

Audio teleconference meetings must still be accessible for the public and media to hear all meeting participants. The city must comply with all notice provisions for special meetings under KRS 61.823. The meeting notice must contain an access number or other method by which the public and media can hear meeting participants for the duration of the meeting, contain a detailed agenda, and the notice must be posted 24 hours in advance of the meeting in the location where city meetings usually occur. During the meeting, the public agency must record minutes that memorialize the votes of each member for any action taken.