Opening closed doors: why we appealed the House’s illegal meeting

As details began to emerge one week agoCOG2 that would rock the General Assembly, the Bluegrass Institute Center for Open Government celebrated a victory in its ongoing transparency initiative. We were also pointedly reminded of the importance of accountability at all levels of governmen

Shortly after learning about the decision of the House of Representatives to conduct a closed meeting to discuss pension reform, we expressed our opposition. We argued that “the open meetings act must be applied even handedly to those at the highest level of government who enacted it as well as to those for whom it was otherwise enacted,” and asked what message the House of Representatives sends to public agencies across the state “if it does not practice what it preaches?”

On August 29, the full House convened in closed session under the guise of a meeting of the majority caucus to which the minority caucus was invited. Only one member, Representative Jim Wayne, D-Louisville, objected to the closed meeting and refused to attend.

One week later, the Bluegrass Institute Center for Open Government submitted an open meetings complaint to the House’s presiding officer, Speaker Jeff Hoover, as required for any such legal challenge by KRS 61.846(1). The words of the preamble to the Open Meetings Act drove our decision to appeal. “The people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know; the people insist on remaining informed so they may retain control over the instruments they have created.”

We alleged that the closed meeting “constituted a violation of KRS 61.810(1) which states that ‘[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times’ unless the public business to be discussed falls within one or more of the 13 exceptions recognized by the General Assembly and enacted into law. There is no specific exception to the open meetings act for discussion of pension reform. Nor is there a general exception to the open meetings act under which discussion of pension reform falls.”

As a means of remedying this violation, we proposed that that the House of Representatives acknowledge that it violated KRS 61.810(1) in conducting a closed meeting of a quorum of its members at which public business was discussed; that the House provide the public with a copy of any written record or audio or video recording of the closed session; and that the House issue a resolution committing to future compliance with the requirements of the open meetings law.

In support, we cited a 1993 open meetings decision — that arose under nearly identical facts — in which the attorney general rejected the House’s defense that a closed meeting to discuss health care reform was a majority caucus meeting to which the minority caucus was invited.

The attorney general recognized that a caucus is “’a conference of party or organization leaders (as in legislators) to decide on policies, plans, appointees and candidates; a local or regional meeting of party members to choose candidates or delegates.’” On this basis he concluded that “perhaps the meeting was originally intended to be some kind of caucus meeting but at least one of the [complainants] maintains that every member of the House was invited to attend the meeting regardless of party affiliation. This office does not know who specifically attended the meeting but if invitations were extended to all members, regardless of party affiliation, then, by definition, the meeting was not a caucus meeting.”

The House rejected our argument that the 1993 decision was legally controlling, asserting that in succeeding years majority and minority caucuses were established as “committees of the General Assembly other than standing committees” that are authorized by KRS 61.810(1)(i) to conduct their meetings in closed session.

But the House’s argument was not sufficient to overcome the obvious fact —  recognized by the attorney general in 1993 and again in 2017 – that a meeting attended by all members of the House, regardless of party affiliation, is not a caucus meeting.

This legal reasoning in 17-OMD-228 is solid, and although the House has until the end of November to appeal the decision to circuit court, we trust that it will choose its legal battles wisely –  in light of the morass in which it now finds itself.

Further, we trust that the House will not take measures to limit the application of the Open Meetings Act to itself as it did in 2003 when it limited the application of the Open Records Act to itself. In KRS 7.119 the General Assembly divested the attorney general of his role in adjudicating disputes that arise from its denial of an open records request, compelling persons aggrieved by such a denial to hire attorneys and incur costs and fees to appeal to circuit court for resolution.

Especially when viewed in light of the past week’s events, the House’s attempt to evade the Open Meetings Act that it originally enacted for all public agencies — including itself — reminds us that it “is neither an ideal nor a suggestion. It is the law.” Public agencies must strictly adhere to the letter of the law “or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”