Both were the subjects of secret university trustees’ meetings concerning their continued employment at their respective universities. And in the case of each coach, the universities they served were — or are being — challenged for abuse and/or outright violation of their states’ open meetings laws.
In 2000 an Indiana attorney, Gojko Kasich, sued Indiana University for violation of the state’s open meeting laws based on secret meetings of less than a quorum of the members of the university’s board of trustees with the university’s president to discuss Knight’s termination. Kasich alleged that the trustees met with the president in two groups of four to avoid having a quorum of the nine member board present at a single meeting.
Their alleged goal? To circumvent the Indiana open meetings law requiring that meetings of a quorum of the board be conducted openly and in a public forum.
In a headline snatched from that era, University of Louisville Board of Trustees Chairman David Grissom unwittingly admitted to a similar violation of Kentucky’s Open Meetings Law based on a series of telephone calls he made to each of the board’s members to discuss beleaguered basketball Coach Rick Pitino’s suspension. At a press conference, Grissom “told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal.” Every trustee, he reported, expressed support for the decision to suspend the coach.
The Indiana lawsuit was decided in favor of the university based on the courts’ interpretation of Indiana law – which does not prohibit less than quorum meetings — and its determination that there was no secret meeting of a quorum of the members of the IU Board of Trustees.
That was good news for IU. But the news for the University of Louisville is not so good.
Kentucky’s Open Meetings Law prohibits both secret meetings of a quorum of the members of a public agency and any series of less than quorum meetings where the members attending one or more of the meetings collectively constitute a quorum if the purpose of the meetings is to avoid the open meetings requirements. Such meetings are illegal — regardless of whether action is taken – if public business is discussed.
And Coach Pitino’s employment status clearly constitutes public business since the board elected to insinuate itself in the discussion by voicing unanimous support for the president’s decision to suspend him.
Notwithstanding his public statements, Grissom will probably claim that it was not his intention, or the intention of the trustees he contacted by telephone, to evade the requirements of the Open Meetings Law. Still, even a basic understanding of that law should have been sufficient to dissuade Grissom and the other trustess from this illegal conduct. After all, the trustees have ample opportunity to educate themselves about the law in their now mandatory training, which includes open meetings, and in written materials prepared by the Kentucky Attorney General describing public officials duties under this law which university presidents are required to distribute to each of them under a statute enacted in 2005. But the university’s transparency track record is not, as we well know, a good one.
For what it’s worth, the Open Meetings Law afforded Chairman Grissom legal options. He might have, for example, called a special meeting of the board with proper notice 24 hours in advance of the meeting. Or he might have called an emergency meeting – although it is questionable whether the circumstances confronting the board were sufficiently grave to warrant such a call – and suspended the 24 hour meeting notice requirement.
Instead he chose to engage in conduct that has been expressly proscribed since 1992 when the Open Meetings Law was amended to address “rolling” or “floating” less than quorum meetings. And it was in 1977, three years after the law’s enactment that the Kentucky Supreme Court determined that telephonic meetings were illegal.
This conduct was not prohibited in Indiana in 2000 when IU’s board conducted less than quorum meetings to discuss Bobby Knight’s dismissal. IU’s board survived its legal challenge seventeen years ago.
It is by no means clear that the University of Louisville will survive a similar legal challenge.
In a guest column appearing on WLKY’s website, UofL graduate and Dallas Morning News editorial writer Michael Lindenberger offers sound guidance to UofL’s Board of Trustees based on lessons learned from a similar debacle at Baylor University. His advice?
“Be painfully transparent. Follow Kentucky’s open records and open meetings laws to a tee. Go out of your way to make your decisions in public and offer plain and thorough rationale for them. Keep notes and minutes and make them available for the public in real time.”
“Yes, there are exceptions to the laws for personnel decisions. To the fullest extent possible without exposing private information about the employees in question, ignore those exceptions. Err on the side of openness.”
Additionally, we urge the board to acknowledge its violation of the Open Meetings Law in the hopes of avoiding a legal challenge to your actions relative to Coach Pitino similar to the legal challenge to IU’s actions relative to Bobby Knight. Because of a significant difference in the two state’s open meetings laws, such a legal challenge almost certainly will not end as well for the University of Louisville as it ended for Indiana University. The university is already facing legal battles on multiple fronts. And no matter how the open meetings dispute ends for the university, the biggest loser is, once again, the public and its statutory right to know.