Open Meetings / City Governance During a Public Health Emergency

Many cities in Kentucky have operated through a natural disaster of some kind in the past few decades. Now our communities are faced with planning for city operations during a public health emergency. Within hours of confirming the first positive case of COVID-19 in Kentucky, Governor Andy Beshear declared a state of emergency allowing the state to access emergency federal funds and activating statewide emergency management protocols. As containment measures progress, cities will face maintaining city operations to provide for the health, safety, and welfare of the citizens, in a public health emergency.

Budget

During a state of emergency, Kentucky law recognizes the city’s mayor as the head of city government. All direction, information, and requests for assistance from state and county officials will flow through the mayor. In a mayor-council form of government, the mayor will have the flexibility to access general fund appropriations for emergency operations. In commission and city manager forms of government, commissioners and/or city managers will need to work with the mayor to ensure access to such funding. Most cities also have contingency or rainy-day funds. Cities should look at any restrictions or requirements for accessing these contingency funds to make sure the funds can be readily available for an emergency with little to no delay. Some legislative bodies may want to issue a resolution expressing how the council hopes the monies will be spent. A resolution in this instance is nonbinding but may assist officials in articulating expectations.

Meetings

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.

Temporary Alternative Location

If the public health emergency degrades to the point in which it becomes “imprudent, inexpedient, or impossible to conduct the affairs of local government at the regular or usual places,” the city governing body can meet any place as directed by the elected chief executive officer, the mayor.