One year later: what the attorney general and I learned about the value of Kentucky’s sunshine laws

COG2At 9:01 p.m. on August 31, 2016, I sent an email to several friends and colleagues from my office in the basement of the Capitol. The subject line read, “Catch you on the flip side.” It contained the following message:

“As many of you know, this is my last day of service to the Commonwealth (and it’s been a late one). I wanted to let you know that if I can ever assist you with anything open records/meetings related (or otherwise, within reasonable limits), please feel free to call or email me.  This is not a decision I made by choice and I fully intend to remain involved in open records/meetings, in some capacity, going forward. I will try to make myself useful. It’s been a great pleasure knowing and working with all of you.”

I had served as an assistant attorney general in the opinions branch of the office’s division of civil and environmental law for the previous 25 years in what I once described as the “best job in state government,” authoring open records and meetings decisions, educating public officials and others about these laws, and assisting the public in using the laws “to make transparent the operations of the state’s agencies.”

Conditions in the office had deteriorated over time, and it was clear that my services were no longer valued or desired. I did not know, as I left the Capitol for the last time that evening, what awaited me or, more importantly, what awaited the area of law in which I had worked for many years.

In the next several days, I learned that there was an unspoken appreciation for the value of service to Kentucky’s sunshine laws. Across the state, the media and the public responded to these events. The Advocate Messenger wrote that news of my departure was “like reading that the Bengals had cut A.J. Green just before the season opener because the new quarterback doesn’t like his running style.” A friend later explained to me that being referred to as the “A.J. Green of government transparency” was a good thing.

And in what has to be described as the most unique, and certainly the best, retirement gift I could have imagined, the Lexington Herald-Leader ran an editorial cartoon depicting the circumstances of my departure.

Happily, my retirement has yielded many positive outcomes.

Having been named director of the Bluegrass Institute’s Center for Open Government, I continue to work on open records and meetings initiatives in a respectful environment — where politics plays no role —  with a staff whose commitment to open government is absolute. At last I am free to express my opinions, assist others, and advocate for meaningful and much needed change to our widely respected but outdated laws without fear of retaliation or reprimand.

Most importantly, the attorney general has awakened to the reality that the open records and meetings laws invest him with the public trust. His statutory functions must be, and now are, being discharged in an atmosphere as nearly free from political intrusion as is possible in an elective office.

In June, 2016, his office issued 16-OMD-124 — a 21 page decision that was overtly political and legally incorrect — holding that the Kentucky Retirement Systems violated the open meetings law when the governor dispatched the state police to its meeting. The attorney general gratuitously devoted several pages to criticism of the governor rather than the legal issue actually presented. One year later, the decisions issued by his open records and meetings staff reflect an objective and balanced analysis of the laws.

Contrary to critics’ beliefs, the decisions are no longer politically driven. I may not always agree with them, but they generally represent a reasoned interpretation of the facts and law. The only known exception is this attorney general’s failure, when the opportunity presented itself in 16-ORD-262, to overrule a notoriously bad open records decision issued by his predecessor on his last day in office holding that electronic communications concerning public business exchanged by public officials and employees on personal devices are not subject to the open records law. He has otherwise permitted his staff to properly discharge this statutory function.

Through no fault of the open records and meetings staff who wrote the decisions, statutory deadlines for issuance of open records and meetings decisions were ignored in the last several years of the previous attorney general’s administration. This bad habit – a violation of the statutes — carried over into the first year of the current attorney general’s administration. Since September, 2016, the deadlines have been closely observed.

These improvements are reflected in the weekly press release of open records and meetings decisions issued by the attorney general’s office. The release also suggests that the attorney general avoids assignment of politically sensitive appeals to non-merit staff. His merit staff still suffers under the weight of an enormous workload, but they are finally accorded the respect they were once denied.

And for the first time, the attorney general has intervened in a circuit court appeal of an open records decision to defend ”the single most important tool [his staff has] in ferreting out the truth in an [open records] appeal”  presented to his office.We can only hope that the courts’ ultimate resolution of this legal issue reflects an appreciation for the importance of the public trust invested in the attorney general in adjudicating open records and meetings disputes.

It is safe to say that none of these improvements would have taken place if I had remained in the attorney general’s office. Despite the merit staff’s best efforts, there was insufficient impetus for change until shortly after August 31, 2016.

As for me, the offer of assistance with “anything open records/meetings related” that I made in that late night email to friends and colleagues stands. I can be reached at abensenhaver@freedomkentucky.com or 859.444.5630.

 

 

 

 

 

Why the attorney general’s decision in The Courier-Journal/Board of Assessment Appeals is correct

COG2“It was a meeting regardless of whether anything was said. It appears to be a political decision where they didn’t want to take on the hard issues.”

This statement by long time open meetings and open records advocate Jon Fleischaker flies in the face of the law he helped to write in the seventies. It appears in an August 28  Courier- Journal article that is critical of the Attorney General’s decision, 17-OMD-166, in an open meetings appeal involving an inspection of the Governor’s private residence by the Board of Assessment Appeals.

In fact, the open meetings law clearly states, “All 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.”

But resolution of the issues presented in an open meetings appeal are rarely as simple as Mr. Fleischaker’s statement would suggest. The attorney general’s staff is regularly asked to review a bare record — consisting of a written complaint that an agency violated the open meetings law and an agency’s written response denying the violation – and issue a decision within ten business days stating whether the agency in fact violated the open meetings law. Since August 1, the staff has issued a total of 14 decisions, six of them open meetings decisions. Lest there be any doubt, that is a high rate of production.

The record in this appeal established that a meeting occurred at which a quorum of the members of the board was present. The term meeting is broadly defined  to include ”all gatherings of every kind . . . regardless of where the meeting is held.” The open meetings law could therefore be said to apply any time a quorum of an agency’s members attend a football game, or a church service or a social event but for the requirement – yes, requirement – that public business be discussed or action taken.

Was this a football game, church service or social event? Absolutely not!

It was one of the rare instances when this well-crafted law is inadequate to address unanticipated facts. It seems highly unlikely that the framers of the open meetings law – including Mr. Fleischaker – pondered the implications of an inspection of a private residence by a quorum of the members of the Board of Assessment Appeals when they established the law’s fundamental mandate, namely, that all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken must be open to the public.

Was public business discussed?

The board states that it was not, the members having agreed to conduct the inspection without comment. “To conclude that no public business was conducted during the inspection” Courier-Journal Executive Editor Joel Christopher remarked in the article, “requires you to believe that no members of the board talked or otherwise communicated with each other at all during the tour of the mansion.” But this – for all the innuendo and doubt cast on the open meetings decision in this case – is the factual basis on which the assistant attorney general to whom the appeal was assigned was required to make his decision.

Proof to the contrary would have yielded an entirely different outcome as the decision clearly states.

To suggest that the decision was political because it was not resolved in the Courier’s favor does great injustice to that assistant attorney general, one of two merit employees who have assumed an enormous workload since an unfilled vacancy was created by my reluctant departure last August.

To suggest that the open meetings law does not require a discussion of public business, in addition to a meeting of a quorum of the members of a public agency, does even greater injustice to the clear statutory language.

The Kentucky Supreme Court said it best in Yeoman v. Commonwealth, a case involving the presence of a quorum of the members of a public agency at a conference sponsored by an outside entity, “The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act. For a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency.”

Though the result is one that frustrates proponents of open government, the attorney general’s decision in this appeal was based on the law and the facts. It was correct.

 

 

Adding insult to injury: University of Louisville denies request for emails relating to erasure of former president’s computer

COG2The plot thickens in the ongoing tale of University of Louisville abuses exposed in a forensic audit released in June. The disclosure that the University of Louisville erased former President James Ramsey’s computer – for the purported use of the acting president’s chief aide in an uncharacteristic money saving measure – was one of many offenses to the public’s right to know identified in the audit.

And now comes news that the university has denied an open records request for emails “that might shed light on the erasure of Ramsey’s computer.”  The Courier-Journal reports that the university relied on the exception to the open records law that authorizes law enforcement agencies, or agencies involved in administrative adjudications, to withhold records “that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action or administrative adjudication.”

History repeats itself.

In 1992, the University of Kentucky invoked this exception to deny the Courier-Journal access to its response to an official NCAA inquiry. The Kentucky Supreme Court summarily rejected this claim, reminding the university that “This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only ‘agency’ involved in ‘administrative adjudication.’ Therefore, KRS 61.878(1)[(h)] would not apply.”

Fast forward to 2017 and the University of Louisville raises the same defense. Here, however, the university does not assert that it is a law enforcement agency or an agency involved in administrative adjudication, but cryptically refers to an external investigation.

Although the Courier does not quote the full text of the university’s response – indicating only that the university “declined to disclose what agency is investigating” —  the article states that outside counsel for the university has “identified the state attorney general’s department of criminal investigations” as that agency.

The article goes on to quote counsel as having stated that “the AG’s office has asked the university not to release ‘materials compiled in the process of this investigation,” but this statement is otherwise unsubstantiated.

Moreover, when questioned about the university’s denial of the Courier’s request, the Attorney General’s spokesman pointed out that, in general, an agency relying on this exception to the open records law “must show why releasing the documents would hurt the probe. The university has not done that.” Absent such a showing – Kentucky’s courts have made abundantly clear – an agency cannot deny an open records request for investigative records.

And so the question again arises: what is the need for secrecy?

The open records law begins with a presumption that “free and open examination of public records is in the public interest.” Agencies are expected to release public records unless they are shielded from disclosure by one of the fourteen statutory exceptions and the need for governmental confidentiality outweighs the public’s right to know. The legislature directs that the exceptions “be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” Additionally, the agency has the burden of proving that its denial was proper.

The university fails to prove that the attorney general’s department of criminal investigations – unnamed in its response – has requested that the university withhold the emails, fails to prove that disclosure of the emails would harm that investigation, and indeed fails to prove that the emails are “records compiled in the process” of investigation.

They are, in fact, records created in the ordinary course of business and nothing like an investigator’s notes, crime scene photos or witness interviews compiled in the process of detecting a statutory or regulatory violation.

The open records law requires disclosure of these emails.  Secrecy only postpones the inevitable end of the long university nightmare.

Practicing what it preaches: House announces closed discussion of pension reform in spite of open meetings mandate

The LCOG2exington-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.

The reasons are as clear as the law the General Assembly enacted more than forty years ago widely known as the Kentucky Open Meetings Act, KRS 61.800 to KRS 61.850.

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?

Error or arrogance: open meetings violations come in all varieties

COG2To 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.

 

 

 

“What is the harm” when an agency conducts the public’s business privately?

COG2Nearly 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.

The thrill of victory and the agony of defeat: authorities’ handling of open meetings and records disputes yields conflicting results

COG2In a short span of 24 hours Kentucky’s open meetings and open records laws were handed a significant victory and a serious defeat.

The thrill of victory: Bluegrass Institute v. Jefferson County Board of Education

The victory occurred when the Bluegrass Institute and its Center for Open Government prevailed in an open meetings appeal involving the Jefferson County Board of Education.

On August 14, Assistant Attorney General James Herrick agreed with the Bluegrass Institute that a special meeting —  conducted by the Board of Education on  Sunday, April 30, in private law offices located in downtown Louisville —  violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

JCPS argued that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

Herrick rejected these arguments in his 17-OMD-161 ruling that “[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.”

He was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute — who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon —  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

“This is not a situation in which a suitable public building was unavailable,” Herrick wrote. “Here, in addition to the VanHoose Education Center, the Jefferson County Board of Education governs a system of approximately 174 schools,” containing suitable public meeting rooms.

“With such a selection of locations available in public buildings,” he concluded, “we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office . . . based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday.”

The Bluegrass Institute was pleased with the open meetings decision. Our goal in bringing the appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency – and we believe we achieved this goal.

The agony of defeat: Commonwealth of Kentucky, ex rel. Andy Beshear v. University of Kentucky

One day before receiving news of our successful open meetings appeal against the Jefferson County Board of Education, the Lexington Herald Leader reported that on August 10 the Fayette Circuit Court ruled in favor of the University of Kentucky in an opinion that will seriously impede the ability of the Attorney General to effectively discharge his statutory duties under the open records law. The court ruled that UK was not required to honor the attorney general’s KRS 61.880(2)(c) request to review records — if characterized by the university as “education records” — for purposes of mediating an open records dispute.

Commonwealth of Kentucky , ex rel. Andy Beshear v. University of Kentucky, originated in an appeal filed by the Kentucky Kernel from the University’s denial of an open records request for the report of its investigation into allegations of sexual assault leveled by students against a professor who was permitted to resign from the university under very generous terms.

In correspondence directed to the attorney general after the Kernel initiated its appeal, UK  acknowledged the existence of a single oral complaint – subsequent events confirmed the existence of multiple written complaints – but relied on the attorney-client privilege and a federal law, the Family Educational Rights and Privacy Act (“FERPA”), to defend its denial of the newspaper’s request.

FERPA is intended to protect student education records from public disclosure, not to protect records relating to the educators who inflict injury on students.

Given this fact, the attorney general invoked KRS 61.880(2)(c) to request documentation from UK to substantiate its denial of the Kernel’s request including a copy of the report itself. In spite of the fact that KRS 61.880(2)(c) clearly authorizes this action, and assigns the burden of proof to the public agency, UK flatly refused to comply with this request.

In one of my last official acts as an assistant attorney general I wrote 16-ORD-161, concluding that UK had not met its statutorily assigned burden of proof and rendering a decision in favor of the Kernel.

I was unwilling to blindly accept, “without further proof in the form of a review of the report under KRS 61.880(2)(c) ‘for substantiation,’ that the report [,generated to comply with federal requirements, and not for the rendition of legal services, was]  attorney-client and work product privileged.”  Absent substantiation, I was also unwilling to defer to UK’s characterization of the report as a FERPA protected education record since it involved “records containing allegations of misconduct against a professor, not a student.”

In a 25 year career mediating open records disputes, I regularly employed KRS 61.880(2)(c) to ensure a fair and thorough review of the legal issues presented. I considered it the single most important tool in ferreting out the truth in an appeal.

And now the Fayette Circuit Court has declared the attorney general’s KRS 61.880(2)(c) authority forfeit in cases where a university invokes FERPA. If this ruling stands, the consequences will be serious, though perhaps not fatal, to the Attorney General’s review. While he can still require a university to meet its burden of proof that disputed records are education records through detailed description of the records, he will be constrained from reviewing the records to independently verify the university’s representations.

Under these circumstances, applicants may be forced to bypass the attorney general and proceed directly to circuit court for review of university denials based on FERPA  –  burdening the courts and incurring costs and attorneys’ fees along the way. Once on this slippery slope, who knows where it will lead?

Attorney General Beshear has announced his intent to appeal the circuit court’s opinion.  We commend him for doing so just as we previously commended him for intervening in the original action. Nothing less than the future of his office’s decades long role as a mediator of open records disputes may be at stake.

 

A helpful hint for public officials: if the action you are contemplating contains the word “secret,” it probably violates the open meetings law

COG2My first law school exam presented a complex hypothetical involving multiple jurisdictional challenges faced by the fictitious manufacturer of a product called “Diaper Doo” –  a product that could only come from the warped mind of a law school professor. The object was to identify as many of those jurisdictional challenges as possible and to analyze them through the keen legal eye of a first semester One L.

I recalled my law school experience while attending a Kentucky State University Board of Regents’ special meeting on August 10. As part of an ongoing effort by the Bluegrass Institute’s Center for Open Government to promote awareness of — and compliance with — the state’s sunshine laws, my object in attending was to identify any open meetings issues that arose at the board’s meeting.

Sadly, I identified as many open meetings issues at that meeting as the jurisdictional challenges I failed to identify on my first law school exam. As the meeting proceeded, I felt as if I was taking a law school exam for a fictitious class called “Failing to Protect the Public’s Right to Know 101.”

When the meeting commenced with a call for a secret ballot on the election of a new chairperson, I knew it would be a bumpy ride. Just over a week ago I posted a blog analyzing a recent attorney general’s open meetings decision declaring that a small local agency’s secret ballot constituted a violation of the open meetings law.

The title of the blog was “Secret Ballots: The Ultimate Affront to Open Government.”

The open meetings decision that was the subject of the blog involved a little known joint planning commission in McLean County that raised a defense based on somewhat ambiguous facts. The board of regents of a state university is simply not entitled to such a defense, unavailing as it was for McLean County.

Under KRS 164.020(25), regents are required to complete six hours of orientation and instruction on topics that include “legal considerations including open records and open meetings requirements.” By separate statutory enactment, they are mandated to receive written information prepared by the attorney general concerning their duties under the open records and open meetings laws.

In this case, Regent Paul Harnice urged the board to conduct a public vote on the election of a new chairperson. That suggestion was somehow lost in the flurry of nominations. To add insult to injury, the board conducted a second secret ballot to elect a new vice chairperson. Two public votes on the elections of the remaining officers followed.

Counsel for the board, a widely respected Frankfort attorney, raised no objection and accommodatingly counted the ballots, announcing the final vote and the winner. Twice. He did not, and of course could not, identify how each regent voted.

Therein lies the problem.

KRS 61.835 requires public agencies to promptly record “minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and action taken at such meeting.” From 1982 to the present, that provision has been construed to absolutely prohibit a vote by secret ballot when a public agency takes final action in open session. The minutes must reflect how each member voted.

The minutes of the August 10 KSU Board of Regents’ special meeting will, perforce, be deficient. Based on longstanding legal precedent — reaffirmed on July 27, 2017 in 17-OMD-151 — the board’s action constituted a violation of KRS 61.835.

Even more sadly, this was just the beginning. The meeting itself was conducted by video teleconference, one member participating remotely pursuant to KRS 61.826. The first section of that statute reads, “A public agency may conduct any meeting, other than a closed session, through video teleconference.” Much of the two hour meeting was devoted to a lengthy closed session discussion of proposed or pending litigation and a personnel matter. Violation.

And that closed session? The departing chairperson announced the board’s intent to discuss pending litigation and a personnel matter. But KRS 61.815 requires that “Notice. . .be given in regular open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific provision of KRS 61.810 authorizing the closed session.” These requirements were not observed. Violation.

There were questions concerning the propriety of the special meeting agenda and the presence of  items such as “opening remarks” and “closing remarks.” KRS 61.823(3) states that the notice of a special meeting “shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.”  This provision has long been construed to prohibit open-ended agenda topics – like “opening” and “closing” remarks — that defy limitation. Violation.

Toward the end of the meeting, the regents fondly discussed a retiring athletic advisor. Unfortunately, this was an impermissible topic because it did not appear on the special meeting agenda. Violation.

To his credit, KSU’s newly appointed president, Dr. M. Christopher Brown II, addressed deficiencies in past board practice with respect to adoption of meeting minutes. He agreed to serve as secretary to facilitate compliance with the legal requirement found at KRS 61.835 —  relating to the timely availability of the minutes — and requested an update on the board’s recordkeeping practices.

Dr. Brown’s efforts will go a long way to improving the perception of how KSU’s board conducts the public’s business. But the most important thing he can do to restore the public’s trust — and confidence in the university and its board — is to firmly commit to ensuring that the board conducts as much of its business publicly as is possible, or, at a minimum, as is legally required.

 

 

 

 

Secret Ballots: The Ultimate Affront to Open Government

COG2There are few actions of public agency officials that more directly fly in the face of open government  than the use of the secret ballot. Surely, forty three years after the passage of the open meetings law agency officials no longer indulge the absurd belief that they are permitted to employ secret ballots in conducting the public’s business.

Not so.

In an open meetings decision issued last week, Assistant Attorney General James Herrick took the McLean County Joint Planning Commission to task for improperly conducting a secret ballot on a rezoning issue. The commission’s defense? The members “did not know or believe” that they were taking final action.

General Herrick rejected that defense in 17-OMD-151.

Relying on the unambiguous language of the open meetings law and opinions dating back to 1982, he determined that KRS 61.835, coupled with the law’s statement of legislative policy, prohibited the commission’s secret ballot vote if its intent was to take final  action on the rezoning issue. KRS 61.835 requires public agencies to promptly record “minutes of action taken at every meeting of any public agency, setting forth an accurate record of votes and action taken at such meeting,” and the statement of legislative policy declares that “[t]he formation of public policy is public business.”

In other words, the public is entitled to know who voted and how they voted.

If, on the other hand, the commission members “did not know or believe” that they were taking final action, General Herrick concluded, they nevertheless violated KRS 61.810(1) mandating that “[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed . . . shall be public meetings open to the public at all times.”

A secret vote by the members, he reasoned, “even if only a ‘straw vote’ to ascertain consensus, constitutes a communication about the public’s business and should not have been conducted in secret during an open session.” He relied on 01-OMD-110. In that open meetings decision the attorney general recognized that public officials “must avoid any whispered, inaudible or closed discussion of the public’s business” during open session. Such conduct derogates from the public’s absolute right “to observe with their eyes and ears what transpires at [public] meetings.”

This, along with Louisville Metro Government’s recent compulsory cancellation of the first meeting of a newly created solid waste board as a consequence of the board’s failure to comply with basic open meetings duties, confirms that many Kentucky officials are woefully ignorant or ill-informed when it comes to a law whose existence spans multiple decades.

It is useful to consider meaningful alternatives to the minimal open meetings training requirements currently imposed on some, but not all, public officials. Kentucky lags behind other states in recognizing that knowledge and understanding of the law promotes compliance with the law. One such alternative — utilizing a mandatory online training module for all public officials —  is advanced by the Bluegrass Institute in its 2017 report, “Shining the Light on Kentucky’s Sunshine Laws: A Proposal for Legislative Revision of the Open Meetings and Records Laws.”

It is also useful to remind public officials of the stirring words of the 1974 preamble to the open meetings law:

WHEREAS, it is the policy of the Commonwealth that the formation of public policy is public business and may not be conducted in secret; and WHEREAS, the legislature finds and declares that public agencies in this Commonwealth exist to aid in the conduct of the public’s business; and WHEREAS, the people of this Commonwealth do not yield their sovereignty to the agencies which serve them; the people, in delegating authority, do not give their public servants the right to decide what is good for them to know; the people insist on remaining informed so they may retain control over the instruments that they have created.

It was these words that prompted the Supreme Court to declare that “the right of the public to be informed transcends any loss of efficiency.”

Public officials whose actions are guided by these words avoid the imputation of wrongdoing under the open meetings law. Conversely, public officials who expend their energies in feigning ignorance of the law or seeking to evade its requirements, like the McLean County Joint Planning Commission members, risk not only the imputation of wrongdoing under the open meetings law, but an adverse ruling by the attorney general or the courts, and, perhaps, the imposition of monetary penalties.

Above all, they risk the well-deserved indignation of their constituents and equally well-deserved reputational damage to the agencies they serve.

 

Bluegrass Institute educates the educators — and they learn the lesson well

COG2Not all public officials refuse to learn from past mistakes.

In a recent post we commented on the Cabinet for Health and Family Services’ failure to learn from the child fatality records debacle that resulted in the courts’ imposition of more than $1 million in penalties, attorneys’ fees and costs as well as a strongly worded Court of Appeals’ opinion in which the court expressed its “exasperation at the Cabinet’s systematic and categorical disregard for the rule of law.”

It was therefore refreshing to witness Kentucky Department of Education general counsel and associate commissioner Kevin Brown provide clear, concise and correct guidance on the application of the open meetings and records laws to the members of the Charter School Advisory Council at the counsel’s inaugural meeting on July 24.

Mr. Brown delineated the members’ obligation to comply with both laws in the discharge of their official duties, focusing on the prohibition on the use of conference calls to conduct council business.

This was a lesson DOE learned in 2015 when the Bluegrass Institute successfully challenged the Kentucky Board of Education’s decision to permit the members of a committee — established to screen search firms for selection of a new commissioner — to conduct their meetings by telephone rather than in an open, public forum.

In 15-OMD-155 the attorney general concluded that the board committee “was a public agency within the meaning of KRS 61.805(2)(g)” and therefore “required to comply with requirements of the Open Meetings Act.” At its most basic level, the law requires “all 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” to be “open to the public at all times” unless the business discussed falls within one or more of the statutory exceptions.

Conference calls thus contravene the fundamental mandate of the open meetings law, a proposition recognized its earliest days.

The Charter School Advisory Council was created by executive order, Mr. Brown explained, and is therefore a public agency pursuant to KRS 61.805(2)(e). Like the screening committee established by the Kentucky Board of Education, it is a public agency — albeit under a separate definitional section —  that must comply with the open meetings and records laws in all particulars.

Better for the members to learn this lesson at the council’s inception than to proceed in ignorance.

The Bluegrass Institute is pleased that its 2015 efforts contributed to the education of these educators.