Campbell County Circuit Court Judge Julie R. Ward ruled last June that the Campbell County Board of Education violated the state’s Open Meetings Law at four board meetings held between August and September 2021 because of a mask requirement.
Ward required the board to pay damages and attorney fees to one of the plaintiffs (Kenneth Moellman, Sr.) and declared any actions taken at the meetings void. But the Commonwealth of Kentucky Court of Appeals ruled on Aug. 25 that though the board of education did violate the Open Meetings Act, the meetings were not void, nor did they need to pay any fines.
Ward heard the case after two Northern Kentucky residents, Moellman and Noah Heim, filed suit on Sept. 21, 2021, alleging that the board’s policy of requiring masks at its meetings violated the Kentucky Open Meetings Act at six board meetings held in 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.
Ward ordered the school board to pay $100 per day ($400) in damages to Moellman plus his legal fees totaling $16,456.70. She ruled that Heim was not eligible because he was able to attend the meetings.
The circuit court found the board’s violation at the Sept. 20 meeting to be “willful” and awarded costs, including attorney fees, to Moellman. The appeals court reversed the decision after finding that there was not a “willful” violation on the part of the board.
Court documents show that Moellman was required to show that the board’s actions were willful and acted in “bad faith with an intent to violate the Open Meetings Act without plausible explanation for its alleged errors.”
“On this record, we cannot conclude the board acted in bad faith or with the specific intent to violate the law,” the court documents state.
The documents continue, stating that the board had several “good-faith reasons” to believe it had the authority to mandate masks at its meetings. The documents stated the good faith reasons as because the board operated on a belief, albeit an “erroneous one,” that masks would maintain order for the protection of public health, and because the board had its own local COVID-19 policy, created over a year earlier, which mandated mask wearing in schools.
The appeals court also found that because the Sept. 20 meeting was livestreamed to the public, another lawfully permitted option was available for Moellman and others to observe the meeting.
“While a live-stream option would not have allowed Moellman to comment, it would have allowed him to view the meeting, which is what the law requires,” the court document states.
Because the court of appeals could not agree with the word “willful,” they reversed the circuit court’s findings of a “willful violation,” reversing the order awarding attorney fees and costs.
In addition, the appeals court found that voiding the school board decisions during the four meetings was an error because the law does not authorize a court to void actions taken in public meetings that violate the statute the board was found to have violated.
Court documents show that Moellman could not show any case where the voiding of actions was upheld when there was a violation of the law, and neither could the appeals court.
