18-OMD-025
February 1, 2018

In re: Courier-Journal/University of Louisville Board of Trustees
Summary: The University of Louisville Board of Trustees
violated the Open Meetings Act in entering closed session
and not complying with the notice requirements for video
teleconference meetings, where members participated by
video teleconference.
Open Meetings Decision
The question presented in this appeal is whether the University
of Louisville Board of Trustees (“U of L Board”) violated the Open
Meetings Act in holding closed sessions where members participated
by video teleconference, and the U of L Board entered into closed
session and did not provide notice of the video teleconference
meeting. We find that the U of L Board violated the Open Meetings Act
in entering closed session and not complying with the video
teleconference notice requirements, where members participated by
video teleconference.
The Courier-Journal submitted a complaint under the Open
Meetings Act to the U of L Board on December 13, 2017. The CourierJournal alleged a violation “concerning the Board’s seemingly routine
practice of allowing trustees to participate in closed sessions via
videoconference,” including “meetings held on October 2, 2017,
September 15, 2017, August 10, 2017, July 20, 2017, and June 28,
2017.” The Courier-Journal further alleged that the U of L Board

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“violated the Act by failing to adhere to the procedural requirements
regarding notice of meetings to be conducted via videoconference,”
including stating “that the meeting will be a video teleconference” and
identifying “the video teleconference locations as well as which, if any,
is primary,” citing KRS 61.826(2).1
The U of L Board responded on December 15, 2017, stating that
at least a quorum was physically present for each of the closed
sessions. The U of L Board argued that “the fact that a board member
may, on occasion, have linked electronically to an in-person meeting at
which a quorum was physically present - - does not convert that inperson meeting into a meeting through video-teleconference.” The U
of L Board further cited to 02-OMD-206, arguing that:
Nothing in the Kentucky Open Meetings Laws or in
02-OMD-206 imposes limits on how an individual board
member - - whose presence is not required to constitute a
quorum - - may participate in a meeting of a public agency
board.
In fact, in 02-OMD-206, the Attorney General noted
that, in amending the Open Meetings Act in 1994 to
authorize the holding of a meeting using video conference
technology, the General Assembly reaffirmed the right of
the public to both hear and see a quorum . . . of the
members of a public agency discuss public business or
take action.
The Courier-Journal initiated this appeal on December 21, 2017,
arguing that “the term video teleconference . . . . says nothing about
quorums; it just requires the meeting to be occurring at two or more
places using video and audio equipment.” It further argued that 02OMD-206 “merely held that an agency cannot achieve a quorum by
1

As relief, the Courier-Journal requested that the U of L Board admit the violations,
cease allowing trustees to participate in closed sessions via video teleconference,
follow the notice rules for video teleconference meetings, provide a list of all closed
sessions over the past twenty-four (24) months in which trustees participated by
video teleconference, release any recordings or minutes of such closed sessions, and
provide a list of any actions taken as a result of such closed sessions.

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using an audio teleconference . . . . But nothing in 02-OMD-206
remotely suggests that video conferencing could be used for closed
sessions . . . .”2
The U of L Board responded on January 22, 2018, arguing that:
The Board’s meetings were not “video teleconferences”
because they did not occur in two or more locations. Every
meeting of the Board in 2017 occurred in a single location –
the noticed location. At each of those meetings, at least a
quorum of the Board was present in person for both open
and closed session discussions. There is no suggestion that
the public was prohibited from attending the open portions
of those meetings at the location where they took place.
The fact that a Board member may, on occasion, have
linked electronically to a meeting at which a quorum was
physically present does not convert that in-person meeting
into a “video teleconference.”
. . . . Imposing video or audio teleconference
limitations upon a public agency’s properly closed sessions
would have no impact upon that purpose because the
public is not entitled to hear or see the members’
discussions in a properly closed session in any event.
KRS 61.826 provides in relevant part:
(1)A public agency may conduct any meeting, other than a closed
session, through video teleconference.
(2)Notice of a video teleconference shall comply with the
requirements of KRS 61.820 or 61.823 as appropriate. In
addition, the notice of a video teleconference shall:
(a) Clearly state that the meeting will be a video teleconference;
and
2

The Courier-Journal also attached minutes of U of L Board meetings on October 2,
2017, September 15, 2017, August 10, 2017, July 20, 2017, and June 28, 2017. The
minutes from each of these meetings indicated that one or more members
participated via video teleconference, and that executive sessions were held.

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(b)Precisely identify the video teleconference locations as well as
which, if any, location is primary.
KRS 61.805(5) provides that “‘video teleconference’ means one (1)
meeting, occurring in two (2) or more locations, where individuals can
see and hear each other by means of video and audio equipment.” The
Courier-Journal contends that the meetings of the U of L Board where
members attended via video teleconference are all video
teleconference meetings, and therefore the requirements of KRS
61.826 apply. The U of L Board contends that because a quorum of the
Board was present in one location, the meetings were not “occurring in
two (2) or more locations,” and therefore the requirements of KRS
61.826 do not apply.
Although we have addressed the issue of the use of video
teleconferencing in open meetings informally in another context, this
presents the first time the issue has been directly addressed in an
open meetings appeal. The provisions at issue were discussed
indirectly in 02-OMD-206. In that decision, an agency “permitted one of
its members who was not physically present to be counted as part of
the quorum . . . by means of a speaker phone that was audible to
members of the public in attendance.” We began by noting the
established law that “there is no statutory authority for an agency to
conduct a public meeting by telephone.” Id. (citing Fiscal Court of
Jefferson Cnty. v. Courier-Journal & Louisville Times Co., 554 S.W.2d 72,
73 (Ky. 1977) and 92-OMD-1688). We then noted that “in 1994 the
Open Meetings Act was amended to authorize video teleconferencing
of meetings,” and cited KRS 61.826. 02-OMD-206. We reasoned that
“in amending the law in this fashion, the General Assembly reaffirmed
the right of the public to both hear and see a quorum of the members
of a public agency . . . and implicitly rejecting the notion of audio
(telephonic) participation alone. . . . Simply stated, the right of the
public to observe the demeanor of agency members is corollary to the
right to hear their comments.” Id. We concluded that “an absent
member cannot be counted as part of a quorum,” and “that an absent
member cannot vote though he or she is constructively present by
audio connection.” Id.

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Although KRS 61.826 was discussed in 02-OMD-206, at issue was
whether telephone participation was permissible, and we held that it
was not. In 13-OMD-118, we held that “this is not to say that the law
prohibits an absent member from listening to the proceedings from a
remote location, but ‘audio (telephonic) participation’ by a member is
unlawful unless it complies with the procedures for video
teleconferencing . . . set forth in KRS 61.826.” However, the U of L
Board does not claim that the video teleconferencing members merely
listened and did not participate in the closed sessions, and the minutes
from several of the meetings reflect the participation of video
teleconferencing members.
Other states have taken a wide variety of approaches to this
issue, based on the language of their respective statutes. 3 As
examples, Mississippi allows a quorum to be present at different
locations by teleconference or video means, as long as there is video
teleconferencing equipment at the place where the public agency
normally meets or a specified location. 4 Arizona and Kansas allow
meetings to take place by telephone or video teleconference with no
additional restrictions.5 California allows videoconferencing of open or
closed sessions, as long as one member of the public agency is
physically present at the specified meeting location, with some
3

See generally Stephen Schaeffer, Sunshine in Cyberspace? Electronic Deliberation
and the Reach of Open Meeting Laws, 48 St. Louis U. L.J. 755 (2004).
4
See Miss. Code. Ann. § 25-41-5(2) (“A quorum of a public body as prescribed by law
may be at different locations for the purpose of conducting a meeting through
teleconference or video means provided that the equipment used is located at the
place where the public body normally meets or at a public location specified in any
notice of a special meeting . . . .”).
5
See Ariz. Rev. Stat. Ann. § 38-431(4) (“‘Meeting’ means the gathering, in person or
through technological devices, of a quorum of members of a public body at which
they discuss, propose or take legal action, including any deliberations by a quorum
with respect to such action.”); Ariz. Op. Att’y Gen. I08-008 (Sept. 29, 2008) (“The
Open Meeting Law clearly contemplates the ability of the Board to hold meetings
through the use of technological devices, such as telephones, video-cameras, or even
web-cameras, in which all members of the body are present simultaneously to
discuss the Board's business.”); Kan. Stat. Ann. § 75-4317a (“‘Meeting’ means any
gathering or assembly in person or through the use of a telephone or any other
medium for interactive communication by a majority of the membership of a public
body or agency . . . .”); Kan. Att’y Gen. Op. 2005-03 (Jan. 27, 2005) (“Regardless of
whether a meeting is to be conducted telephonically, in person, by video-conference,
or even through third parties, the requirements of the KOMA remain applicable.”).

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additional restrictions.6 Texas allows videoconferencing for smaller
governmental bodies only if a quorum is physically present in one
location, and for larger governmental bodies only if the presiding
member of the meeting is physically present. 7 Virginia allows
videoconferencing only if a quorum is present at one primary location. 8
In short, there is no one established answer or trend as to how to
reconcile open meetings acts with video teleconferencing. Each state’s
rules regarding teleconferencing of open meetings depend on that
state’s particular statutory text, and so our analysis must rely solely on
the text and policies expressed in KRS 61.805(5) and KRS 61.826.
“Our primary goal is to discern the intent of the General
Assembly, and we discern that intent, if at all possible, simply from the
language the General Assembly chose, either as defined by the
General Assembly or as it would ordinarily be understood in the given
context.” Ballinger v. Commonwealth, 459 S.W.3d 349, 354 (Ky. 2015).
KRS 61.805(1) provides that “‘meeting’ means all gatherings of every
kind, including video teleconferences, regardless of where the meeting
is held.” The definition of “meeting” expressly includes video
teleconferences, and expressly states that it is “regardless of where
the meeting is held.” KRS 61.805(5) further defines “video
teleconference” as “one (1) meeting, occurring in two (2) or more
locations, where individuals can see and hear each other by means of
video and audio equipment.” KRS 61.805(5) does not define or require
a primary location, but simply refers to meetings occurring in two or
more locations through use of video and audio equipment. It makes no
reference to the presence of a quorum at any particular locations, only
the use of video and audio equipment.
“It is fundamental that in determining the meaning of a statute,
we must defer to the language of the statute and are not at liberty to
add or subtract from the legislative enactment or interpret it at
6

See Cal. Gov't Code § 11123(b)(1).
See Tex. Gov't Code Ann. § 551.127(b), (c).
8
See Va. Code Ann. § 2.2-3708(B) (“State public bodies may conduct any meeting
wherein the public business is discussed or transacted through electronic
communication means, provided (i) a quorum of the public body is physically
assembled at one primary or central meeting location . . . .”).
7

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variance from the language used.” Caesars Riverboat Casino, LLC v.
Beach, 336 S.W.3d 51, 56 (Ky. 2011). Since KRS 61.805(5) makes no
reference to a quorum requirement, but only to a meeting in two or
more locations by the use of video and audio equipment, we cannot
add to the plain language of the statute. We cannot add quorum
requirement to the statute, nor can we add any exception if only a few
members participate by means of video teleconferencing. The
definition of “video conferencing” by its plain terms encompasses all
meetings occurring in multiple locations using video or audio
equipment, and we are not at liberty to depart from it.9
Accordingly, if a member of a public agency participates by video
teleconference, the meeting is a video teleconference as defined in
KRS 61.810(5), and the meeting is subject to the video teleconference
provisions of KRS 61.826. In allowing members to participate by video
teleconference, while going into closed session, and not complying
with the additional notice requirements of KRS 61.826, the U of L Board
violated the Open Meetings Act.
We recognize that our decision creates notable inconvenience for
members of public agencies. However, such inconvenience must yield
to the express language of the Open Meetings Act, and its policy that
“the formation of public policy is public business and shall not be
conducted in secret and the exceptions provided . . . shall be strictly
construed.” KRS 61.800. We do further note that this holding applies
only to participation by teleconferencing members. A member may
video teleconference into a meeting to listen and watch without
participating, as in 13-OMD-118, without triggering the requirements of
KRS 61.826.
A party aggrieved by this decision may appeal it by initiating
action in the appropriate circuit court pursuant to KRS 61.846(4)(a).
The Attorney General shall be notified of any action in circuit court, but

9

We note that the statutes at issue were last amended in 1994, and we encourage
the legislature to revisit these statutes in light of the significant technological
developments of the past twenty-four years.

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shall not be named as a party in that action or in any subsequent
proceedings.

Andy Beshear
Attorney General

Matt James
Assistant Attorney General
#467
Distributed to:
Jon L. Fleischaker
Leslie Chambers Strohm