“To cultivate an opinion with a strong foundation, look at contrasting sources. Assess and analyze the portions of opposing arguments that both match and dispute any preconceived notion you already accept. Understanding a topic from multiple perspectives is the only effective way to comprehend its entirety. … If an opinion is constructed with considerable judgment, it will be able to withstand attempts at refutation. Once you’ve gotten inside the heads of the opposition, you will have the tools to create a viable argument worthy of contest.” –Nicole Leonard, Western Kentucky University’s College Heights Herald
Practicing what it preaches: House announces closed discussion of pension reform in spite of open meetings mandate
The Lexington-Herald Leader reports that “all House [of Representative] members will meet Tuesday in closed session at the Capitol to discuss pension reform.” This is not an auspicious beginning to the legislature’s latest effort to address Kentucky’s pension crisis.
In the legislative statement of policy that governs the open meetings act, “ The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret.” This unambiguous statement, along with KRS 61.810(1), clearly establishes 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.
Under the broadly worded definition of the term “meeting” adopted into law by the General Assembly, this includes “informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.”
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, even if the exceptions are liberally construed.
And, the General Assembly declares in the legislative statement of policy, “the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.”
Under what legal authority, then, does a quorum of the members of the House of Representatives propose to meet in closed session to discuss pension reform? Shouldn’t the members of the General Assembly be required to play by the rules that they made for themselves and others?
The stated reason for the closed session is to permit House members to “express themselves freely.” Assurances are given that “[n]o straw vote will be taken to determine how members feel on the issue.”
A similar argument was advanced by the House of Representatives in 1993 when its members proposed to meet in closed session to obtain information about then Governor Brereton Jones’s health care reform proposal. In 93-OMD-63 and 93-OMD-64, open meetings decisions issued by the Kentucky Attorney General based on appeals arising from the same facts, the attorney general determined that as a state legislative body the House of Representatives is a public agency pursuant to KRS 61.805(2)(b) and its meetings are subject to the open meetings act.
Moreover, the attorney general reasoned, KRS 61.810(1)(i) creates an exception for closed session discussions of “Committees of the General Assembly other than standing committees.” If the House of Representatives was, he concluded, “excluded from the coverage of the Open Meetings Act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act.”
The only defense raised by the House in 1993 was the fact that a quorum of its members was not present for the closed door discussion of public business.
In both 93-OMD-63 and 93-OMD-64, the attorney general held that but for the absence of a quorum of the members of the House of Representatives at the closed session meetings to discuss health care reform, the meetings would have constituted a violation of the open meetings act.
The Herald-Leader reports that “all House members will meet” on Tuesday behind closed doors to discuss pension reform. Under these 1993 open meetings decisions, the proposed meeting of a quorum of the members of the House of Representatives at which public business will be discussed will violate the open meetings act if not conducted in open session.
The fact that no action is anticipated, and no straw vote will be taken, does not alter this conclusion. The open meetings act is premised on the statement that the “formation of public policy is public business and shall not be conducted in secret.” The requirements of the act are triggered if a quorum is present and public business is discussed regardless of whether action is taken. The public is, of course, entitled to know what the final policy is, but it is also entitled to know what information was considered in formulating the policy and how its elected representatives voiced their concerns and positions on the policy.
Certainly no one wants to impede the House of Representatives in the daunting undertaking of pension reform, but 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. What message does the House of Representatives send to public agencies across the state if it does not practice what it preaches?
I don’t follow the Atlantic, but one of their writers, Alia Wong, has a very interesting article up in the Education Writers Association site about the problems of teaching school kids about fake news.
Unfortunately, Wong’s article makes a lot of sense.
Wong begins by posing a very interesting question:
“During and after the 2016 presidential campaign, questions arose about whether shortcomings in civics instruction had exacerbated polarization in the electorate and influenced the election’s outcome. The questions on civics education were soon accompanied by a related one: What if schools are contributing to a breakdown in democracy by failing to ensure kids are media literate?”
The article then answers that question, expressing concern that a recent study by the Stanford History Education Group found that students identified a web site “as a credible source of information — even though the website is maintained by a lobbying firm for the food and beverage industry.”
The article additionally laments that students decided one news article was more credible that another solely because the first article had an “attractive infographic.”
The Atlantic’s writer also points out that “media illiteracy is in large part symptomatic of a systemic flaw: schools’ failure to instill these skills amid an increasingly convoluted world of information.”
This reminded me of another kids-believe-all-sorts-of-stuff-on-the-web study that I learned about years ago regarding the fictitious “tree octopus.” Kids were directed to a bogus web site that had been created to fool them and then wouldn’t believe this fabrication didn’t exist even after researchers explained the web site was a plant created to test student credibility about anything found online.
Back in the present, the worry may be about fake news and our kids’ ability to detect it, but Wong’s take on the issue sounds all too much like solid – and scary – news to me.
Gallup just polled the American public about which schools do the best job of educating students. The results show a clear win for school choice options.
This interesting table from the new Gallup Report makes an important case.
It is interesting that just about every school choice option listed, including charter schools, is favored by a majority of Americans.
Home schooling’s rather low rating comes as a surprise, with somewhat less than a majority saying they believe home schools provide an excellent or good education. Perhaps this is due to the fact that there really isn’t a lot of good comparison data about home school performance. Still, even home schooling is held in higher public regard than the regular public school system.
This poll exposes some clear image problems for public schools. Only five percent of the public think they provide an excellent education, while a majority of Americans, 54 percent, believes public schools provide only a fair to poor education.
Gallup has some interesting comments of their own concerning their poll such as this one:
“Americans as a whole believe private and parochial schools do a better job of educating students than public schools do, something that might be remedied with the right federal or state public school education policies. Another remedy may be expanding charter schools so that parents of children in failing public schools who can’t afford private school have other options for their children.”
This poll certainly adds more insight into how rank and file Americans really feel about the performance of various school choice options. Kentucky’s policy makers would do well to keep this in mind as they oversee the introduction of charter schools in the Bluegrass State and continue to contemplate fostering more access to other school options, as well.
To its great credit, the Nelson County Board of Education recently acknowledged that its failure to observe the requirements for going into closed session at its August 3 meeting violated the open meetings law.
On August 12, the Nelson County Gazette reported that it had filed an open meetings complaint with board chair Diane Breeding in which it alleged that the board’s failure to give public notice of the general nature of the business to be discussed in closed session, the reason for the closed session and the statutory exception authorizing the closed session violated the law. As required by statute, the newspaper proposed several remedies, most of them aimed at improving the board members’ understanding of their legal obligations under the law.
On August 17, the newspaper reported that the board’s attorney admitted that its members “inadvertently failed to follow the proper procedure as prescribed by the Open Meetings Act.” While school board members are afforded ample opportunity to learn — or to educate themselves — about the legal requirements for open meetings compliance, mistakes are made. The board’s prompt acknowledgement of error suggests that it was, indeed, inadvertent.
Mistake made and acknowledged. Lesson learned.
Unfortunately, not all public agencies are willing to acknowledge open meetings error. Their “holier than thou” rhetoric suggests that they are entirely incapable of any error.
Witness the Jefferson County Board of Education’s reaction to 17-OMD-161, an open meetings decision issued by the Kentucky Attorney General on August 14 following the submission of an appeal by the Bluegrass Institute Center for Open Government. That appeal focused on the board’s decision to conduct a public meeting in a private law office located on the 28th floor of a downtown Louisville building – on a Sunday afternoon – and alleged that the location was not convenient to the public as required by law
The attorney general agreed that a private law office was not a place convenient to the public. He observed, “A public meeting must be held in ‘a place from which no part of the citizens … may be excluded by reason of not feeling they may freely attend.’ The standard here is one of reasonableness. In this case, the Board met in a private law office . . . . [Based on] common experience as well as the specific experience of the [representatives of the Bluegrass Institute] when [unsuccessfully] attempting to access the office of Wyatt, Tarrant & Combs on a Sunday, we believe it reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting there.”
Kentucky’s open meetings law requires that public agencies conduct their meetings at times and places convenient to the public. It makes no reference to places designed to minimize agency cost. Most importantly, it makes no reference to the convenience of the public agency.
WDRB reports that in responding to the open meetings decision, the board chair “criticized as ‘ludicrous’ the Bluegrass Institute’s claim that it found the doors of PNC Plaza locked when it tried to access the building on Sunday, July 9. ‘The only thing this group has done has guaranteed that any time there is a special meeting, even on weekends, that there will be a cost incurred by the taxpayers of Jefferson County.’”
Mistake made but deflected. Lesson not learned.
Again, we marvel that public officials uniquely positioned to appreciate the value of education refuse to be educated about a law that governs every aspect of their public service. That law obligates the board to consider the right of the public to be informed even at a cost — albeit a conspicuously unspecified cost — to the agency whose past spending practices could hardly be described as parsimonious.
Like the Nelson County Board of Education, the Jefferson County Board of Education would do well to prioritize the public’s statutory rights above its own convenience and, yes, unspecified costs.
Nearly five years after the Advocate-Messenger issued an open meetings challenge to the Danville Board of Commissioner’s actions in purchasing a building to house its public works department, the Kentucky Supreme Court heard oral arguments in the case on August 16, 2017.
So much for “proceedings arising under [the judicial enforcement provision of the open meetings law] tak[ing] precedence on the docket over all other causes.” Five years seems a long time to wait for finality.
The issue before the Court in Board of Commissioners of the City of Danville, Kentucky v. Advocate Communications, Inc., D/B/A The Advocate-Messenger is the propriety of the board’s closed session discussion of the building’s purchase under KRS 61.810(1)(b), its failure to take final action on the purchase in open session, and its failure to respond to the Advocate-Messenger’s open meetings complaint.
This is not a typical case arising under the exception authorizing closed session “deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.” Given the unusual circumstances surrounding the purchase and the Advocate-Messenger’s decision to withdraw its proposed remedy to nullify the contract to purchase the building, the Court questioned how it could develop a precedent for other cases.
At one point Justice David Venters asked the attorney for the Advocate-Messenger, veteran open records and meetings champion Jon Fleischaker, to identify the injury to the public resulting from the execution of the contract to purchase the building.
Without missing a beat Fleischaker responded, “It is the violation of the open meetings law.”
He is, of course, right. It is the act of depriving the public of its right to know how its elected officials conduct its business.
The backstory in the case of this $1.23 million purchase is a complicated one. It begins with the city’s lease of the building for its public works department in 2004, the expiration of that lease in 2011, a subsequent month to month lease, and the later approval by the board of a search for a new facility at a budgeted amount of $2 million.
On July 17, 2012, the building’s owner announced an absolute auction of the building to be conducted on August 10. Anticipating that auction, at a July 23 public meeting the board went into closed session to discuss the purchase of the building, which had been appraised for $1.5 million.
The facts and law become murky at this point. It is not disputed that the board privately authorized the city manager to engage a bidding agent, a local realtor, to bid on the property at the auction and set a maximum bid of $1.5 million. At the August 10 auction, the city’s agent made the winning bid. The city manager thereafter signed a contract to purchase the building and tendered a $123,750 down payment.
None of these events were discussed in any open session at any public meeting.
On August 13, the board held another meeting. It emerged from another closed session and approved the purchase contract and the already executed down payment. It was at this point that Danville’s residents first learned that their officials had purchased the building.
The Advocate- Messenger subsequently challenged the board’s actions under the open meetings laws to the attorney general. In 12-OMD-179 that office ruled that, “The public was entitled to know each [Board] members’ position on the purchase of the [building]at the time the agreement was reached to extend a bid and not after the purchase was consummated. Although its intent in failing to conduct a public vote on the purchase may have been prompted by a desire to acquire the building at the least cost and in the most fiscally responsible way, the [Board] did not enjoy the privilege of cloaking its final action in secrecy, and its decision to do so” violated the open meetings law.
To paraphrase Fleischaker in his argument to the Court, the city’s position is premised on the belief that it was permitted to violate the open meetings law if there was a “good fiscal reason.” Its position is flawed. Even if public discussions put the city at a disadvantage, its elected officials did not have the authority to abridge the open meetings law and the public’s right to know.
The Boyle Circuit Court endorsed this reasoning as did the Kentucky Court of Appeals. The ball is now in the hands of the Kentucky Supreme Court.
I learned long ago not to try to predict the likely outcome of a case based on the Court’s interaction with counsel. This much is clear: the legislature has fixed the scope of permissible closed session discussion, and public agencies have no authority to exceed the permissible scope. The injury to the public lies in the violation of the law and – ultimately — the breach of the public trust.