Judge: School board violated Open Meetings Law over mask requirement

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Campbell County Circuit Court Judge Julie R. Ward has ruled the Campbell County Board of Education violated the state’s Open Meetings Law at four of its board meetings held between August and September of 2021 because of a mask requirement.

She required the board to pay damages and attorney fees to one of the plaintiffs, and declared any actions taken at the meetings void.

Two Northern Kentucky residents, Kenneth Moellman, Sr., and Noah Heim, said the board’s policy of requiring masks at its meetings violated the Kentucky Open Meetings Act at six board meetings held over last summer — August 9, 16, 18 and 30, 2021, and September 9 and 20, 2021. Moellman refused to wear a mask and was turned away from the meetings. Heim wore a mask temporarily but removed it once he was in the room. He was not ejected from the meetings.

The judge ordered the school board to pay $100 per day ($400) in damages to Moellman plus his legal fees. She ruled that Heim was not eligible because he was able to attend the meetings.

Were executive orders in effect?

The school board argued they were under Gov. Andy Beshear’s executive order mandating masks. They were also following the Kentucky Department of Education’s emergency administrative regulation requiring masks inside public school facilities. The board also cited its own COVID-19 policy, which was adopted at the meeting on Sept. 20.

In her opinion, Ward noted the governor’s executive order created a state of emergency that suspended the Open Meetings Law. On the dates the order was in effect, the school board did not violate the law, she said.

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But only two dates, August 16 and 18, fell within the time the order was in effect.

The timing of the executive orders and the efforts by the Kentucky legislature to limit the scope and duration of the orders created a complex timeline of when the orders were in effect.

In early 2021, the legislature passed a series of bills, including House Joint Resolution 77, that specifically lifted the suspension of the Open Meetings Act. But the Franklin Circuit Court issued an injunction that prevented HJR 77 and the other bills from going into effect at that time.

The governor issued another order requiring masks in K-12 schools in May 2021 and again in August 2021. Each time, the orders were challenged in the courts. On August 23, the governor rescinded his order. As a result, only two of the August school board meetings (August 16 and 18) were subject to the executive orders.

Did regulations apply?

Ward rejected the school board’s claim that meetings were covered under the Department of Education regulation because it specifies masks must be worn in school facilities “where one or more students are present therein.” She said school Superintendent Dr. David Rust testified no students were present at the meetings, therefore, the board meetings would not be covered under this regulation.

The board also argued the masks were necessary to maintain order, citing a Kentucky disorderly conduct law. Under the law, a person is guilty of disorderly conduct in the second degree if they intend to cause public inconvenience, annoyance, alarm or wantonly create a risk. It outlines various behaviors such as fighting, making loud noises, threatening, failure to disperse during an emergency and creating a “hazardous or physically offensive condition by any act that serves no legitimate purpose.”

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The judge also rejected this point, stating she found no evidence that Moellman or Heim intended to cause a physically offensive condition by not wearing a mask. She also said the school board had not shown that either man was infected and posed a risk.

More questions

Ward also said, since the schools’ own COVID-19 policy was not passed until the Sept. 20 meeting, that, too, did not apply.

Ward questioned the school board’s motives for barring Moellman and Heim.

“The Court finds the violation of the Open Meetings Act particularly egregious at the September 20, 2021, meeting where there were no executive orders, emergency regulations or injunctions in place which would require masks, and the board intended to vote on the board’s Covid-19 plan,” Ward wrote. “The board, by requiring masks, barred attendance from the very individuals most likely to oppose passage of the COVID-19 plan.”

LINK nky reached out to Rust for comment on the ruling and whether the board plans any further response, but has not received a reply.

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