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.”

 

Basking in the sunlight of last week’s open records and open meetings victories

COG2Few weeks have rivaled the week of October 30 to November 3 for reaffirming the principles of open government. A description of the week’s events follows.

On October 30, the attorney general ruled that the Cabinet for Health and Family Services violated the Open Records Act in denying the State Journal’s request for records relating to the “state’s involvement with Jaxton and Kirsten Dean.” Earlier this year, the State Journal reported that two year old Jaxton and his mother, Kirsten, had died in an apparent murder suicide.

The Cabinet acknowledged the existence of a past as well as a pending investigation, but denied the newspaper’s request based on KRS 61.878(1)(h), an exception that is often invoked while an investigation is proceeding.

But in a 2013 opinion, the Supreme Court established that the exception is “appropriately invoked” only “when the agency can articulate a factual basis for applying it, only, that is, when, because of the record’s content, its release poses a concrete risk of harm to the agency in the prospective action.”

The attorney general’s management team was slow to accept the Court’s opinion, to the great frustration of his open records/meetings staff, and in a series of open records decisions  went to great lengths to affirm agency denial of access to records in open investigative files.

17-ORD-224 signals — once and for all we hope — the end of this strained attempt to shield investigative records from public inspection. The attorney general properly determined that the Cabinet violated the Open Records Act in withholding investigative records relating to Jaxton and Kirsten Dean without showing how release of the records “poses a concrete risk of harm to the agency in “a prospective action.” The law is clear on this point, and past open records decisions should no longer muddy these waters.

On November 1, the Franklin Circuit Court rejected –  for largely the same reasons —  the Kentucky State Police’s reliance on KRS 61.878(1)(h) to deny an open records request for records relating to a 22 year old criminal case. In Sarah Teague v. Kentucky State Police, the court identified the “potential harms articulated by KSP” which included release of “heretofore undisclosed investigative details [that might] tip off individuals involved in the crime,” “bias a potential jury pool,” or “adversely color witness recollections of the events.”

Characterizing these concerns as “vague, speculative, and extremely remote,” the court concluded that the requester, the mother of the victim in the unsolved case, was entitled to copies of 911 tapes which, strangely enough, KSP had previously permitted her to hear.

The importance of the Supreme Court’s 2013 opinion as an antidote to secret investigative activity cannot be overstated.

On November 2, the attorney general held that the Kentucky Board of Medical Licensure improperly denied a request for the recording of a disciplinary hearing involving an impaired physician and conducted under Chapter 13B of the Kentucky Revised Statutes.

KRS 13B.080(8) expressly provides that such disciplinary hearings “shall be open to the public unless specifically closed pursuant to a provision of law.” Moreover, KRS 13B.090(6) entitles  “[a]ny person, upon request, [to] receive a copy of the recording or a copy of the transcript, if the hearing has been transcribed, at the discretion of the agency, unless the hearing is closed by law.”

The board maintained that the entire recording of the hearing was shielded from public inspection by an order sealing the record. No specific legal authority, state or federal, was cited in support of the order and no evidence was presented that the hearing was “closed by law.”

On this basis — and consistent with the unambiguous language found in Chapter 13B – the attorney general concluded in 17-ORD-231 that the Board of Medical Licensure improperly denied the requester access to the recording.

Also on November 2, the Kentucky Supreme Court confirmed the public’s right of access to the financial records of a utilities management company –  privately incorporated but wholly funded through its contract with local government — that had evaded scrutiny since 2011.

In Utility Management Group, LLC v. Pike County Fiscal Court, the Court determined that the company, UMG, was a public agency as defined in KRS 61.870(1)(h) – the “25% rule”– when, in 2011, the Pike County Fiscal Court requested access to its business records.

UMG had denied the fiscal court’s request, asserting that it was not a public agency for open records purposes. On appeal, the attorney general rejected UMG’s position and determined that because it derived more than 25% of its funding from local authority funds, it must disclose the requested records.

As the case proceeded through the courts, opponents of the 25% rule succeeded in convincing the General Assembly to narrow its application by excluding from the 25% calculation public funds derived under competitively bid contracts. This, conveniently, included UMG. The issue for the courts, thereafter, became one of retroactive application of the amended statute to prohibit access to UMG’s business records notwithstanding the fact that it was a public agency at the time the request was made.

The Court rejected UMG’s retroactive application argument and concluded that the public must be afforded access to the business records requested in 2011.

Serious problems persist with KRS 61.870(1)(h) as a consequence of the ill-advised 2012  amendment to the statute. But for now, open government advocates can bask in the sunlight of this and the others victories recounted above.

Each of these victories merits its own blog. And — with the exception of the last — the Bluegrass Institute Center for Open Government played a direct or indirect role in each by assisting the requesters in the development of arguments and the drafting of records request, letters of appeal, and briefs to the court.

But it was the Bluegrass Institute Center for Open Government itself that filed an open meetings appeal and secured another significant victory for open government last week. On November 1, the attorney general issued 17-OMD-228 declaring that the Kentucky House of Representatives violated the Open Meetings Act when it conducted a closed meeting of a quorum of its members in late August to discuss pension reform. An analysis of our victory in that appeal will be the subject of a future blog.

For now it’s safe to say that it doesn’t get any better for access advocates than the week of October 30 to November 3.

 

Attorney general rules no foul in UofL open meetings challenge, but the public’s right to know is penalized

COG2When the legislature enacted KRS 61.810(2) in 1992, it did so with good intentions. The Open Meetings Act had prohibited secret meetings of a quorum of the members of a public agency where public business was discussed or action taken since its enactment in 1974.

But agencies quickly found ways to circumvent the Act by holding serial less than quorum meetings where consensus was secretly reached. No quorum was “present” during any of these meetings, but the members attending the meetings collectively constituted a quorum.

The effect of these “floating” or “rolling” serial less than quorum meetings was the same as the effect of a secret meeting of a quorum: the public was denied its legal right to monitor the discussions that went into  the “formation of public policy.”

In enacting KRS 61.810(2), lawmakers recognized that “[a]ny series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency” are public meetings under the Act and must be open to the public.

Clear enough. Agencies could no longer evade open meetings compliance by discussing public business in a secret meeting of a quorum of their members or in a series of less than quorum meetings.

At this point, the legislature apparently got cold feet. Lawmakers retreated from the strongly worded statement of prohibited conduct found in KRS 61.810(2) by requiring proof that the serial meetings were “held for the purpose of avoiding the requirements” of the Open Meetings Act.

Consider the challenge to the public of obtaining proof that the agency members intended to violate the Act and the ease with which the agency could refute that proof by submitting affidavits from the members attesting to their innocent participation in the serial meetings.

Lest KRS 61.810(2) have any real impact, lawmakers inserted an additional loophole that permitted serial less than quorum meetings “where the purpose of the discussions is to educate the members on specific issues.”

Not surprisingly, agencies regularly raise this defense when they are accused of violating KRS 61.810(2).

It is, in fact, the defense that the University of Louisville Board of Trustees raised in fending off a legal challenge arising from a September 27 press conference in which Board Chairman David Grissom “told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal,” and indicated that “every trustee told [him] they supported acting President Greg Postel’s decision to suspend athletic director Tom Jurich and men’s basketball coach Rick Pitino.”

It is also, unfortunately, the basis on which the Kentucky Attorney General affirmed that action.

Relying on that portion of KRS 61.810(2) which excludes discussions held for the purpose of educating members from the prohibition on serial less than quorum meetings, UofL defended the telephonic meetings between Grissom and the Board members as “informational” and “advisory.”

And in 17-OMD-222  the attorney general agreed with UofL.

In what can only be described as a confusing analysis both legally and factually, the attorney general determined that “The U of L Board did not violate the Open Meetings Act by informational calls made by the Interim President to board members notifying them of the decision to place Mr. Jurich on administrative leave.”

The complainant did not allege, nor did the evidence support, a series of telephone calls placed by  the university president to the individual board members. The complainant alleged — and the evidence incontrovertibly supported — a series of telephone calls placed by the chairman of the board to the individual board members. The attorney general’s understanding of the underlying facts is curiously flawed.

This error aside, the attorney general casually accepted the board’s defense that the series of less than quorum telephonic meeting —  in which board members collectively constituting a quorum participated —  were informational only notwithstanding the fact that Grissom, himself, stated in a press conference that he contacted the members by telephone to “get their take on how best to respond” to the scandal and that every member expressed support for President Postel’s decision to suspend the key players.

This suggests not just the sharing of information but also discussion of alternatives (“how best to respond”) and  expressions of opinions (“expressed support”) on a matter with which the board of trustees was ultimately entrusted, specifically, Jurich’s future employment at the university.

In fact, it sounds a lot like the beginning of “the formation of public policy.”

KRS 61.810(2) does not require proof that the members took action. Their discussion of public business was sufficient to trigger the KRS 61.810(2) requirement of an open meeting even if that portion of the meeting relating to discussion of Jurich’s discipline or dismissal was conducted in a properly convened closed session.

The casualness with which the attorney general approached this issue will embolden other public agencies to exploit the loopholes in KRS 61.810(2) that essentially render it a nullity. Short of an admission by agency members that their goal was to avoid the requirements of the Open Meetings Act and that they took action on a matter with which they were entrusted, 17-OMD-222 suggests he is willing to give them a pass.

In a report issued earlier this year, the Bluegrass Institute Center for Open Government recommended elimination of both of the loopholes in KRS 61.810(2).  We proposed a zero tolerance statute. The benefits would be twofold. First, public agencies could no longer evade accountability by the simple expedient of feigning ignorance of their statutory duties. And second, the public could assert the right to monitor discussion of the same information presented to the members so that the public and the members would be equally well educated on specific issues.

The net effect would be a slam dunk for open government.

 

 

 

Unringing the bell: why open meetings remedies are often unsatisfactory

COG2One of my first undertakings as director of the Bluegrass Institute’s Center for Open Government was an open meetings challenge to the Jefferson County Board of Education’s decision to conduct a board meeting in a private law office on the 28th floor of an office building in downtown Louisville.

The Open Meetings Law requires public agencies to conduct their meetings at times and places convenient to the public. We alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location.

We cited legal authorities predating the enactment of the Open Meetings Law by 25 years and as recent as 2016  recognizing 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.”

Not surprisingly, we prevailed on this legal issue when it was presented to the Office of the Attorney General on appeal.

The attorney general 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.”

JCPS was not persuaded. WDRB reported 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.’”

In addition to identifying the alleged violation in our open meetings complaint, the law also required us to propose a remedy. We proposed that the Jefferson County Board of Education acknowledge its violation of the open meetings requirement that all public meetings be conducted at times and places convenient to the public.

Other than its dismissive comments to WDRB, the board remained silent.

Accordingly, on September 13 the Bluegrass Institute mailed a letter to the board “to demand compliance with the remedial measures [we proposed], which now bind the Jefferson County Board of Education, and written verification of compliance.”

Again, the board remained silent.

Therein lies the greatest frustration with the Kentucky Open Meetings Law. Unlike those agencies – which are few and far between – that acknowledge error and commit to a future course of compliance with the law, many agencies openly disregard their express statutory duties and the attorney general’s legally binding rulings.

And the minimal penalties that the law currently imposes do little to deter this misconduct.

In an open records appeal, the remedies for noncompliance are clear: disclosure of the wrongfully withheld records. And – since 2016 when the Kentucky Court of Appeals affirmed a lower court’s assessment of penalties and attorneys’ fees in excess of $1 million – a “liberal reading of those provisions aimed at the meaningful punishment of those who willfully obfuscate the public’s ability to examine non-exempt records.” 

In an open meetings appeal, the remedies for noncompliance are often gestures: an admission of error, an adjustment in practice, and an occasional attempt to publicly reconstruct discussions improperly conducted in secret. Training on open meetings is only valuable as a remedy if the trainer is thoroughly steeped in the law and its underlying policies and the agency members are truly receptive.

It is not valuable if the trainer actually believes that open meetings compliance is “all about the money.”

Nevertheless, the courts have twice shown a willingness to impose the harshest existing penalty in the Open Meetings Law on noncompliant public agencies in recent years. When an agency takes action that is not in “substantial compliance” with the Open Meetings Law, that action “shall be voidable by a court.”  In 2012, the Kentucky Supreme Court affirmed the trial court’s opinion voiding a contract for consulting services entered into by a school board and its departing superintendent when the board “entirely failed to comply with the law.”

One year later, the Court of Appeals affirmed the trial court’s opinion voiding a school board’s legal challenge to a recall petition for an ad valorem property tax based on the board’s failure to comply with the Open Meetings Law.

This was the remedy originally sought, but later withdrawn, by the Advocate Messenger in its successful open meetings challenge to the Danville Board of Commissioners’ secret discussion of the purchase of a building earlier this year. Had it not done so, that purchase might have been voided by the courts as well.

As for the Jefferson County Board of Education, the issue under discussion at its illegal April 30 meeting was nothing less than the candidates for interim superintendent. The board’s attitude toward the Bluegrass Institute’s legal challenge – and the attorney general’s legally binding conclusion that it violated KRS 61.820 – might not have been so cavalier had this matter proceeded to the courts and the courts, in turn, voided action taken at or resulting from that illegal meeting.

Perhaps it’s time to consider even harsher penalties – or at a minimum — equipping the public with the resources necessary to pursue open meetings disputes through the courts. Or perhaps it’s time public agencies wake up to the reality that “[t]he failure to comply with the strict letter of the law in conducting meetings violates the public good.”

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.”

 

 

AG rejects Finance argument that secrecy ensures integrity in State Journal open meetings appeal (with an assist from the Bluegrass Institute)

COG2The State Journal  prevailed in an open meetings appeal to the Office of the Kentucky Attorney General in a decision issued on October 6, 2017 — 17-OMD-207 — and the Bluegrass Institute Center for Open Government played a role in its victory.

Assistant Attorney General Matt James ruled that the Finance and Administration Cabinet’s refusal to publicize — and admit the public to —  meetings of the Capital Plaza built-to-suit selection committee violated the Open Meetings Act. The Center for Open Government worked closely with the State Journal in formulating the arguments and drafting the complaint that culminated in the newspaper’s successful appeal to the attorney general.

The Capital Plaza built-to-suit committee was created under authority of KRS 56.8163(1). The Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute.” The committee is therefore a public agency. Simple, right?

Not so for the Finance Cabinet and its legal staff. They insisted that an obscure advisory opinion issued by the attorney general in 1992 — relating to sub-delegation of adminstrative responsibilities in a university setting — trumped the express language of these two statutes.

The cabinet did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.

Instead, the cabinet focused on the fact that the committee members’ identities would be disclosed if its meetings were conducted in public, exposing the members to potential improper contacts and influence.

Assistant Attorney General James rejected that argument, noting that “there is always a risk of improper contact in any issue of public importance,” and “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Thus, James summarily rejected the Finance Cabinet’s attempt to turn the notion that “sunlight is the best disinfectant” on its head.

To be clear, KRS 56.8169 authorizes the committee to discuss specific proposals in closed session. Neither the State Journal nor the Center for Open Government disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committee’s permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.

Once again, the Bluegrass institute is pleased to have assisted in securing the proper resolution of this important legal issue and advancing the principles of open government.

The open meetings law affords the Finance Cabinet 30 days to appeal the attorney general’s open meetings decision to the Franklin County Circuit Court. If the cabinet chooses not to pursue this course of action before 30 days has elapsed, 17-OMD-207 will have the force and effect of law and bind the parties.

 

Kentucky Supreme Court quickly and correctly resolves Danville open meetings dispute

COG2The Kentucky Supreme Court made up for lost time when, on September 28, it issued an opinion upholding the public’s right to know in an open meetings case argued just 44 days earlier.

The case involved the Advocate Messenger’s challenge to closed sessions conducted in 2012 by the Danville Board of Commissioners to discuss the purchase of a building to house the city’s public works department.  It was the subject of an earlier Center for Open Government blog in which we questioned why five years had elapsed between the dates on which the incidents occurred that prompted the newspaper’s legal challenge and the oral argument that resulted from that challenge .

Whatever the reason, the Supreme Court resolved the appeal quickly and, more importantly, resolved the appeal correctly.

The Court affirmed the attorney general, the circuit court and the Court of Appeals in concluding that closed board meetings at which the commissioners agreed to bid on a building that had come up for sale at an absolute auction — and decided on a maximum bid — were impermissible under the open meetings exception for “[d]eliberations 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.”

The board’s reliance on the exception, the Court concluded, was misplaced “based on basic principles of contract formation applicable to auction sales, and importantly, under the [unique] facts of this case.”

It is the “wrinkle that makes this case unique” that also limits its precedential value for future appeals. Having made the winning bid, “the city ultimately was obligated to purchase the property, with the decision to bid on and to buy the property having been made in closed session in violation of the Act. The board’s post auction approvals, albeit conducted in public, were window-dressing. . . .”

But regardless of how often it is cited in future open meetings disputes, Board of Commissioners of the City of Danville v. Advocate Communications, Inc. D/B/A The Advocate Messenger represents a victory for the principle of open government.

Open meetings disputes rarely reach Kentucky’s appellate courts, and opinions reaffirming the public’s right to know are enthusiastically welcomed. The appellate courts issued the last significant opinions in 2012 and 2013.

Unfortunately, the Advocate Messenger must absorb the cost of this protracted legal battle. The Supreme Court reversed the Court of Appeals’ award of attorneys’ fees and costs based on the latter court’s determination that the board “deliberately elected to ignore the requirements of the Open Meetings Act when it proceeded to discuss public business in private” and that “[i]ts conduct was unquestionably willful as construed by City of Fort Thomas [v. Cincinnati Enquirer].”

Again noting that “this case is unique,” the Supreme Court concluded that the violation resulted more from the board’s “misconception of the law applicable to bidding at public auction without reserve, than from a willful attempt to violate the Act.”

Perhaps.

But the lesson learned, though it comes at a high cost to the newpaper, is invaluable. That lesson, as we noted in our August 17 blog, is simply this: “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 [Open Meetings Law] and – ultimately — the breach of the public trust.”

 

Rick Pitino, Bobby Knight and the meetings that sealed their fates

COG2What, besides the obvious, do University of Louisville Coach Rick Pitino and former Indiana University Coach Bobby Knight have in common?

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.

 

 

 

 

 

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.