Government by secret committee: a clear abuse of the public’s right to know

COG2In 2015 the Bluegrass Institute appealed the Kentucky Board of Education’s denial of an open meetings complaint to the Office of the Kentucky Attorney General.

There was nothing unusual in that act. The Kentucky Attorney General reviews multiple open meetings appeals each year.

What was unusual was the fact that an esteemed public body charged with developing policies for  “planning, coordinating, administering, supervising, operating, and evaluating the educational programs, services, and activities within the Department of Education” failed, in the first instance, to understand its longstanding duties under the Open Meetings Law, and refused, in the second instance, to acknowledge its obvious violation of the law when the Bluegrass Institute challenged its actions in an open meetings complaint.

What was that violation?

It was the board’s erroneous belief that a committee it created to “manag[e] and narrow[ ] the search for a firm to assist . . . in finding a new commissioner of education” was not a “public agency” as that term is defined in the Open Meetings Law, and that it could therefore conduct its meetings by private  telephone discussions.

In 15-OMD-155 the attorney general rejected this position relying, in part, on a Kentucky Supreme Court opinion issued in the eighties. The Court in Lexington Herald Leader v. University of Kentucky Presidential Search Committee analyzed the definition of “public agency” — as the term was defined in that era — and concluded that the exclusion of public agency committees from the application of the Open Meetings Law “would clearly thwart the intent of the law.”

The attorney general cited no less than ten earlier open records decisions in ruling for the Bluegrass Institute. This line of decisions recognized the status of committees of public agencies as distinct public agencies and their duty to comply with each and every open meetings requirement imposed on the agency to which they owed their existence.

The term “public agency” has included any committee, ad hoc committee, or advisory committee of a public agency since the earliest days of the Open Meetings Law. Currently, KRS 61.805(2)(g) defines the terms as “[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a ‘public agency’” as  otherwise defined in the law.

Nothing evokes greater surprise, and resistance, from public officials than the news that the agencies they serve cannot avoid the requirements of the Open Meetings Law by conducting the public’s business in secret committee meetings based on the erroneous assumption that the committees are not public agencies because they consist of less than a quorum of the members of the body that created them.

Their arguments for secret committees? Committee meetings encourage more candid and open discussion and promote efficiency.

But lawmakers and judges have rejected these arguments by defining “public agency” to include committees — by whatever name – and declaring that “the right of the public to be informed transcends any loss of efficiency.”

It seemed to come as a surprise to the members of the Frankfort/Franklin County Planning and Advisory Committee for Redevelopment of the Capital Plaza and Associated Area, a public agency that – to its credit — recently acknowledged its obligation to admit the public to its meetings, that its subcommittee must also adhere to the requirements of the Open Meetings Law. In the course of its October 11 meeting, the committee announced that a subcommittee of its members would convene two days before its next regularly scheduled meeting to review proposals and narrow the field of potential consultants responsible for a redevelopment strategy.

When questioned about the public’s right to attend the subcommittee’s meeting, the committee expressed a willingness to admit the public but stopped short of acknowledging its legal obligations under the Open Meetings Law. Committee members indicated they would consult with the city attorney before conceding the point.

The city attorney’s review of the law can yield only one result. Based on the analysis found in 15-OMD-155, and the legal authorities on which is was based, there is no doubt that the committee and its subcommittee are public agencies.  They must comply with the requirements of the Open Meetings Law even though compliance may prove inconvenient or even inefficient.

In the final analysis, “the right of the public to be informed transcends any loss of efficiency.”