Amye Bensenhaver

Amye Bensenhaver

“‘Next to useless:’ Neighbors protest school project, find limits of virtual public meetings”

This headline appeared in the March 24 edition of the Lexington Herald-Leader. It concerns the Fayette County Public Schools, neighbors’ anxiety about local school construction, and the new normal for open meetings compliance in the midst of the coronavirus outbreak: the “virtual meeting.”

One participant characterized the meeting as a “joke,” complaining that the district “did not have a virtual meeting with us. There was no dialogue. Instead of addressing what you knew were our questions, you gave us information that was more like a presentation of how wonderful the new school will be. We did not feel heard, nor did we have an opportunity to respond to any of the presented material.”

Across Kentucky, public agencies are making dramatic adjustments to the way they do the public’s business. 

Under an executive order issued on March 18, Gov. Andy Beshear suspended those sections of the Kentucky open meetings law “mandating in-person interactions or meetings,” “requiring the physical presence of participants in meetings,” or “requiring a primary physical location for public attendance at meetings conducted by video teleconference.”

The order directs public agencies to make their meetings available “through the internet and/or television.” It provides no additional details on how agencies are to discharge this duty.

The executive order supplements an advisory opinion, OAG 20-05, issued by Attorney General Daniel Cameron on the same day. By suspending these legal requirements during the period of the emergency declaration, the governor laid to rest any doubts about the proper course of action in conducting public meetings during this crisis.

In a March 19 post, the Kentucky Open Government Coalition noted that although the governor’s and attorney general’s guidance can be reconciled with the language of the open meetings law and is therefore legally defensible, it “will inevitably create challenges for public agencies that do not currently maintain the necessary technology” or resources.

Not long after, I received an email from Mary Cromer, deputy director of the Appalachian Citizens' Law Center Inc. In recent years her work has focused, in part, on the Martin County water crisis. 

She expressed concern about the the local water district’s ability to implement the open meetings guidance emanating from Frankfort.

I learned that although the water district has a website and Facebook page, Martin County itself has sketchy to no internet service. The opportunities for citizen engagement in “virtual district meetings,” if efforts are undertaken to conduct them, is limited by a lack of basic infrastructure.

We briefly discussed the option of local television access, but I learned that Martin County does not have a local TV station. Even the suggestion that district meetings broadcast on local radio, an option that admittedly does not satisfy the minimal requirement that a public agency ensure that citizens “attending” its “virtual meeting” can see and hear the agency members, was abandoned. 

Martin County has no local radio station. 

In Martin County, as in Fayette County, citizen engagement in local government is threatened by the coronavirus outbreak and necessary restrictions on public gatherings. The challenge for some local agencies is greater than others, but the public’s frustration is statewide.

Agencies are rising to the challenge; some more successfully than others. Sadly, through it all, the “do as I say, not as I do” conduct of the Kentucky General Assembly has sent a message to public agencies that can politely be described as “mixed.”

As I scrambled to find a workable solution for Martin County Water District, and other agencies similarly situated, I reached out to an old friend and colleague, now a city attorney, whose commitment to open government is unquestioned.

In our conversation about viable alternatives, and the shortcomings of each, he commented that “the perfect should not be the enemy of the good.”

In that moment, it all became very clear. 

Virtual meetings are not, and can never be, a substitute for meetings at which members and attendees are physically presence. 

The ability of the public to truly engage is another casualty of the coronavirus outbreak. 

But for now, and for the far greater goal of containing the coronavirus, we’ll have to make do with the good.

The good requires strict compliance with meeting notice requirements and recording minutes. The good requires additional steps, like roll call votes and posting videos of the meetings on agency websites soon after they occur. And, perhaps most importantly, the good requires agencies to dedicate their efforts to providing livestreamed public meetings that, insofar as feasible, replicate meetings at which the members and the public are physically present.

We can demand the perfect from public agencies when this crisis has passed.

Frankfort resident Amye Bensenhaver served as an assistant attorney general under six Kentucky attorneys general. Her work focused exclusively on open-records and open-meetings laws. She continues to write about and advocate for the state’s government transparency laws. She can be reached at missbhaver@gmail.com.

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