Jefferson County Public Schools denies Bluegrass Institute’s open meetings complaint

COG2On May 7 the Bluegrass Institute reported on an April 30 meeting of the Jefferson County Board of Education. Nothing especially newsworthy there except that the board conducted this meeting at a highly questionable time and place.

The meeting was conducted at 4:00 pm on a Sunday afternoon in the office of a private law firm located on the 28th floor of PNC Plaza, 500 W. Jefferson Street, in downtown Louisville instead of the board’s regular meeting site.

The stated reason for the unusual time and location? This was the only time all board members were available to meet and “the law office was used so as to not inconvenience district employees who would have to open a building on a weekend.”

The Kentucky open meetings law requires public agencies to conduct their meetings at “specified times and places which are convenient to the public.” The law makes no reference to the convenience of agency employees.

This is one of the objections we raised when we submitted an open meetings complaint to JCPS chairman Chris Brady on June 21.

Leaving aside the unusual decision to conduct the meeting on a Sunday afternoon – which might discourage some attendees — we alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location. In support, we cited a 2016 open meetings decision issued by the attorney general’s office determining that a meeting conducted in a private residence was inconvenient to the public.

That open meetings decision, 16-OMD-178, was based on legal authorities dating back to 1949 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.”

As a means of remedying the violation we proposed that the board acknowledge its violation of KRS 61.820(1) and agree to conduct all future meetings at times and places convenient to the public, namely its regular meeting site, unless the site does not provide adequate space, seating and acoustics.

JCPS denied our complaint, emphasizing the lack of proof that “any member of the public was in fact dissuaded from attending the meeting because of its location” and distinguishing a meeting held in a downtown office building from a meeting held in a private residence.

Chairman Brady noted that the downtown office building where the meeting was conducted “contains restaurants, a convenience shop and, until recently, a bank all of which are frequented by the general public during the week.” He maintained that “public, prominently-identified elevators transport the public to offices throughout the building, including the 28th floor offices of Wyatt, Tarrant & Combs where entry doors are (and were on the day of this meeting) wide open during the day.”

It was his position that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday.”

This is where we disagree.

Experience teaches that access to private offices is generally limited to business invitees during business hours. Private offices are entirely inaccessible to the public during nonbusiness hours.  Members of the general public do not freely enter and exist nonpublic buildings and offices at any time.

And certainly not on Sundays.

We confirmed this on a recent visit to PNC Plaza. At 4:00 pm on a Sunday afternoon we were unable to gain admittance through any of the doors to the building fronting Jefferson Street. All of these doors were locked.  On our final attempt to enter through a side door on Fifth Street, a guard unlocked the door. He confirmed that the doors to the building are locked on the weekend, and that if members of the public somehow gain admittance they are not permitted to take the elevators to the private offices located in the building.

None of the businesses which JCPS identified in its response were open much less accessible to the public.  As we were leaving, an individual who appeared to be an employee of one of the businesses located in the building admitted himself through an electronically activated door using a badge.

Whatever special provision was made for JCPS’s board meeting on April 30, to suggest that the meeting was conducted in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend” flies in the face of reasonable expectation and common experience. To assert that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday” is, at best, disingenuous.

Absent compelling justification, such as the inability to provide adequate space, seating or acoustics, the decision to conduct the meeting in any location other than JCPS’s regular meeting site was and is indefensible.

Not a big surprise: University of Louisville Foundation also engaged in open meetings violations

COG2The Courier Journal headline, “Experts: U of L officials improperly invested own money in foundation-backed companies,” gave no indication that the article’s introductory sentence would identify violations of the Kentucky open meetings law.

But reporter Andrew Wolfson prefaced his article with the statement, “They met in President James Ramsey’s conference room, with no notice to the public.”

“They were called the ‘Entrepreneurial Group,’” he explained, describing the group as “a select panel of University of Louisville Foundation board members, officers and outside consultants who recommended investments in new ventures to the foundation and to Ramsey.”

As an advisory committee of a public agency, the “Entrepreneurial Group” was also — these facts strongly suggest — a public agency for open meetings purposes.

Its most offensive acts did not consist of apparent open meetings violations including but not limited to the failure to give notice of, and admit the public to, its meetings. But the culture of secrecy within which the group operated contributed to the abuses with which the foundation is charged, enabling them to go unchecked far too long.

This is not the first time that allegations of open meetings violations have been leveled against the foundation. Here the allegations involve a committee established by the foundation.

And this is the critical point.

By its express terms the open meetings law applies to “any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency. . .established, created, and controlled by a public agency.”

Absent this statute, a public agency could avoid the requirements of the open meetings law, and accountability to the public, by establishing committees of less than a quorum of its total membership to conduct its business behind closed doors and convening publicly for the limited purpose of taking action. No discussion. No debate.

So much for the legislative recognition that “the formation of public policy is public business and shall not be conducted in secret.”

But the open meetings law does not permit this outcome. Committees of public agencies, even committees established for the exclusive purpose of advising, are themselves public agencies. A quorum of the committee is based on the total number of committee members and not on the total number of  members of the public agency that created it.

It is surprising how few public agencies acknowledge this fact.

Committees must adopt a schedule of regular meetings and treat all other meetings, including rescheduled regular meetings,  as special meetings, observe the requirements for conducting closed sessions, record minutes of their meetings, provide meeting room conditions that allow effective public observation, and in all respects “maximize notice of [their] meetings and actions.”

Given the gravity of the consequences that flow from noncompliance with the open meeting law, including the voiding of action taken at an illegal meeting, public agencies must understand and implement the duty to treat any of their committees as discrete public agencies and ensure that they  adhere to the letter of the law in conducting meetings. Failure to do so, the courts have noted, “would thwart the intent of the law.”
 

 

Two steps toward open government, one step back

COG2A Fayette circuit court dealt the University of Kentucky a substantial blow in an opinion issued on June 27 in which it declared that the university violated both the open records and open meetings laws in responding to the Lexington Herald-Leader’s records request and meetings complaint.

The university – whose track record in open records and meetings compliance is less than impressive – refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting.

The university characterized the audit as a preliminary record and withheld it under the open records exceptions for preliminary drafts and notes and preliminary memoranda in which opinions are expressed.

The problem? Those exceptions have no application to records that are adopted by an agency as part of its final action. And in this case, the audit was adopted as the basis for the university’s decision to refund payments made by the complainants in full.

The university also argued that the audit and PowerPoint were not subject to public inspection because they constituted attorney-client/work product privileged materials. These privileges are regularly invoked by the university as a fallback position for denying access to any record that passes through university counsel’s hands.

Not every record that agency counsel reviews is protected by the attorney-client/work product privilege. If, for example, counsel reviews the menu for a board dinner meeting, is the menu excluded from public inspection? Given the university’s propensity for invoking the privileges in the face of multiple open records requests, this scenario is not entirely beyond the realm of possibility.

The Fayette circuit court nipped such an absurd possibility in the bud.

Noting that the audit consisted of “systematic analyses of data” and not “confidential communications made for the purposed of facilitating the rendition of professional legal services,” the court determined that “the fact that the audit was ultimately provided to either the university’s General Counsel or [outside counsel] is not sufficient to cloak it with the attorney-client privilege.”

The disputed PowerPoint, the court continued, was presented at a regularly scheduled dinner meeting of the board that was open to the public. No member of the public attended owing to “some intent on the part of the university to mislead the public about the nature of the . . .‘dinner’ meeting, implying that it was merely a social event.”

Nevertheless, the court concluded, “the decision to receive the report in an open meeting reflects a complete lack of. . .an expectation” of confidentiality and “the privilege is absent.”

The court frowned on the university’s attempt to rewrite the open records and meetings laws by dismissing its noncompliance with the statutory requirement that it keep minutes of its public meetings and, if justified, invoke the appropriate exception for closed session discussions, as mere “technicalities.”

Citing a Kentucky Supreme Court opinion in which the state’s highest court declared that the “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,” the Fayette circuit court observed that “technical compliance with the Open Meetings Act is exactly what the law demands.”

Sadly, the Fayette circuit court did not adhere to Kentucky Court of Appeals binding legal precedent in resolving the question of access to outside counsel’s billing records.

The Court of Appeals held that not “each and every description of services rendered contained in billing statement prepared by non-government lawyers. . .falls under the attorney-client privilege” and required a “particularized demonstration that each description is privileged.”

Ignoring this precedent, the circuit court concluded that “the total amount paid [to outside counsel] is sufficient” to satisfy the public’s right to know, and placed the invoices under seal in the record. This is unfortunate.

But a reminder to the university, the precedent stands.

The university is no stranger to open records and meetings appeals of adverse rulings, and we suspect it will exhaust all appellate remedies before it finally accepts these well-entrenched principles of Kentucky’s sunshine laws.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Officials’ use of private devices to conduct public business: A serious threat to open government

BIPPS Logo_pick“BYOD,” or “Bring Your Own Device,” is an increasingly common corporate practice in which employees are permitted to conduct business on their personal computing devices. In the private sector, the practice is believed to increase productivity, enhance employee morale, and save on costs.

In the public sector, the same practice threatens the ability of citizens to hold agencies accountable through their records and meetings.

Relying on a legally unsupportable interpretation of the open records law advanced by Kentucky’s attorney general, some public officials in the state labor under the delusion that they can avoid scrutiny by conducting public business on their personal devices.

Until this question is resolved by the courts in a published opinion recognizing that the existing definition of the term “public record” extends to all communications concerning public business generated by public officials and employees —  whether transmitted on publicly issued or privately owned devices —  or the definition of “public record” is amended to avoid the attorney general’s preternaturally narrow interpretation, this grave threat to open government will persist.

In the context of records reflecting discussions of public business on private devices, Attorney General Jack Conway first articulated this reductive interpretation of the term “public records” on his final day in office. He directed the release of 15-ORD-226, two months after the statutorily mandated due date for his decision, obviating any possibility of internal staff discussion of the issue.

Quoting KRS 61.870(2), which states that “public record” means “documentation, regardless of physical form or characteristics, which is prepared, owned, used, in the possession of or retained by a public agency,” he grossly oversimplified the issue by suggesting that because “cell phone communications, including calls or text messages, made using a private cell phone that is paid for with private funds, are not prepared by or in the possession of a public agency,” they are not “public records.”

In so doing, he ignored the expansive definition of the term “public record” and years of precedent that had guided his office’s interpretation of the law recognizing that  “In the end, it is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.”  00-ORD-207.

Such communications concerning public business may reside on private premises, or in this case,  private devices but the public official or employee who owns the device, “holds [the records] at the instance of and as custodian on the [agency’s] behalf.”

Attorney General Andy Beshear compounded this error in 16-ORD-262, concluding that communications exchanged by agency officials with agency counsel on private devices were not “possessed or used” by the agency.  The communications related to agency business and — although ultimately deemed not useful by agency counsel — were reviewed by counsel and therefore used by the agency.

Again, the attorney general referenced the applicable law but ignored it.

As noted, Kentucky’s courts have not yet addressed this issue, but courts in other jurisdictions have, applying a rule of constructive agency possession and concluding that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them” maintains them on a private device.

These courts recognize that the purpose of public access laws is not served if an official or employee “can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.”  It makes as much sense to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Yet this is precisely what the Kentucky attorney general would have us believe.

There is no greater threat to the public’s right to know than this fallacious interpretation of the law. Followed to its logical conclusion, it eviscerates both the open records and meetings laws and extends to public officials and employees a license to conduct secretly all public business on private devices without fear of accountability.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Bensenhaver, winner in 2016 of the Scripps Howard First Amendment Center Award, spent 25 years as an assistant attorney general during which she wrote nearly 2,000 legal opinions forcing government entities to operate in the open when too many of them preferred to keep questionable – sometimes even corrupt – activities hidden from public view.

KentuckyWired: Still suffering from the secrecy virus

COG LOGOThe Bluegrass Institute has made no secret of its opposition to KentuckyWired, the state’s $340M broadband initiative, describing it as “a big government boondoggle” and examining the “[v]irus of secrecy infect[ing]” the project in an October 2015 article.

It should have come as no surprise to me when I was unable to locate the agency’s offices so that I could submit an open records request.

I was asked to obtain a copy of the regular meeting schedule for the Kentucky Communications Network Authority, the board that oversees KentuckyWired. The schedule was not posted on the agency’s website – not a legal requirement but a common practice among public agencies —  and the only available telephone number sent me directly to voicemail.

Several telephone calls to the Governor’s Office, to which KCNA is administratively attached, yielded no results. Otherwise helpful employees had never heard of the authority and ultimately provided me with the same telephone number I had already unsuccessfully called.

Later in the day, I reached an employee who provided me with the agency’s address: 209 St. Clair Street, Fourth Floor.

My reasons for hand delivering the open records request were twofold. First, I had wasted so much time attempting to locate the agency’s address, I missed the afternoon mail. And second, I wanted to determine if the agency had complied with KRS 61.876 by posting rules governing access to its records in a prominent location accessible to the public.

These statutorily required rules are the “how to’s” for citizens wishing to access the agency’s records by means of an open records request. KCNA’s rules were nowhere to be seen. Is this a violation of the open records law? You bet.

Several hours after I delivered my request, I received a telephone call from agency counsel and a subsequent email.

Notwithstanding the legal requirement that the “schedule of regular meetings. . .be made available to the public,” he indicated that  “at the April 2015 [sic] meeting the KCNA board set its regular meetings on a quarterly basis:  March, June, September and December.   The meetings will be scheduled for the 3rd Thursday of each month.  The Board’s next meeting is June 15 at 1 pm in Room 110 of the Capital.  Since the board set the regular meetings at the April meeting, I don’t have a document to provide to you, but I wanted to give you the information.”

I asked that he specify the actual dates, times and locations, and he responded, “Based on this schedule, the meetings will be September 21, 2017, December 21, 2017 and March 15, 2018, all to be held at 1 pm in Room 110 of the Capital [sic], contingent upon schedule and room availability.”

I reminded agency counsel that “the regular meeting schedule should fix the date, time and place for regular meetings,” but was minimally satisfied with his response.

That is until I received a follow-up email from agency counsel on June 15. He advised, “I wanted to let you know that at today’s meeting the Board changed the December meeting date.  It is now Dec. 14, 2017 at 1:00 pm in Room 110.”

By rescheduling the December 21 regular meeting to December 14, KCNA obligated itself to treat that meeting as a special meeting and to comply with statutory notice requirements. It is well established that a rescheduled regular meeting is a special meeting. See, for example, 92-OMD-1473, recognizing that “when the public agency deviates from its regular meeting schedule and reschedules that regular meeting, the rescheduled meeting becomes a special meeting.”

“The express purpose of the Open Meetings Act” —  Kentucky’s highest court has observed — “is to maximize notice of public meetings and actions.  The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” Both the legislature in enacting the law and the courts in construing it have demonstrated a commitment to open government openly arrived at.

Nevertheless, these events confirm that KCNA’s regular meeting schedule is conditioned “upon schedule and room availability” and therefore not fixed as to date, time and place. It provides inadequate notice to the public and no real certainty as to future regular meetings.

KCNA is far too casual about what constitutes a formally adopted regular meeting schedule. How many more changes will the board make and will these changes be reflected in its illusory regular meeting schedule?

How better to evade oversight than to conduct meetings without adequate notice to the public. Apparently, KCNA is still infected with the virus of secrecy that afflicted it in 2015.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Bensenhaver’s work recognized

BIPPS Logo_pickToday, the State Journal recognized Amye Bensenhaver’s work on government transparency. In an editorial article, the Journal commended the director of the Center for Open Government on her proposals for “much-needed modernization and strengthening of sunshine laws.”

Praising Bensenhaver, the State Journal affirmed her credibility: “No one in Kentucky is more thoroughly versed on the details of open-meetings and open-records laws — or more qualified to suggest ways to improve them.” Bensenhaver’s decades in the Attorney General’s office give her deep knowledge.

Reforming Kentucky’s sunshine laws would benefit all citizens within the Commonwealth, not just the media. “Any citizen has the same access — or lack thereof — to government business that we have. Sunshine laws protect us all.” Reporters and editors utilize records to keep readers informed, but they do not have any special status for obtaining information.

The Bluegrass Institute is proud to work with Amye Bensenhaver on this critical area.

UofL Foundation audit exposes willful obstruction of open records act

BIPPS Logo_pickShocking revelations abound in the forensic audit of the University of Louisville Foundation, but none more shocking to proponents of open government than the revelation that the foundation conspired with its attorneys to conceal and destroy records that exposed financial abuses, brazenly documenting these activities in an electronic “paper trail.”

The audit describes a lack of transparency in the foundation’s deferred compensation plan that netted a dozen high-ranking administrators $20M over a period of years.

The audit quotes a 2008 email in which President James Ramsey’s chief of staff, Kathleen Smith, requested foundation counsel’s guidance  to “keep these [deferred compensation] participation agreements from being subject to ORR [open records requests]” based on her belief that “Dr. Ramsey does not want any of these to end up in the hands of the C-J [Courier-Journal].”

This conduct continued in 2012 when, the audit reveals, Smith emailed the university provost, who had expressed concerns about “overcompensation,” reassuring her that “foundation retirement contracts” were “deliberately ambiguous because ambiguity is in the employee’s favor.”

And in a 2014 email quoted in the audit, agency counsel advised Ms. Smith by email that he “picked DCPA, LLC for deferred compensation program administrator,” to replace its former designation. She responded that whatever designation was selected, it “needs to be difficult to figure out for media.”

In the face of a 2003 Court of Appeals ruling – later affirmed by the Supreme Court — that the foundation was “established, created, and controlled by a public agency,” namely the University of Louisville, and therefore itself a public agency subject to the open records law, officials engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises.

Worse still, the audit’s general findings indicate that UofL and the foundation “did not preserve all available computers and mobile devices utilized” by certain employees whose email accounts were placed on “litigation hold” from any records destruction. For example, the audit notes, UofL “erased and repurposed Dr. Ramsey’s hard drive” before the auditor was hired.

Additional instances of records destruction are recounted in newspaper accounts.

On the spectrum of abuses committed by UofL and the foundation that the audit exposed, contempt for the laws governing records management and inspection by high-ranking officials may be found at the lower end.

But the records tell the story of the abuse. They ensure accurate reporting by the media, including the Kentucky Center for Investigative Reporting. Over a period of years, KYCIR pursued multiple appeals to the attorney general’s office involving the UofL Foundation and fought for access to foundation records in the courts not once but twice.

The actions of UofL and its foundation are disheartening for those who hold fast to the belief – eloquently expressed by the Court of Appeals — that the “Open Records Act is neither an ideal nor a suggestion.  It is the law. Rigid adherence to this stark principle is the lifeblood of the law which rightly favors disclosure, fosters transparency, and secures the public trust.” The commitment of investigative reporters –like the KYCIR staff — to expose the agencies’ abuses is reassuring.

News Release: Bluegrass Institute report stresses the need to modernize Kentucky’s sunshine laws

BIPPS Logo_pick

For Immediate Release: Monday, June 5, 2017                                                                                         

COG LOGO(FRANKFORT, Ky.) – A report released today by the Bluegrass Institute for Public Policy Solutions, Kentucky’s first and only free-market think tank, urges policymakers to revise and update the commonwealth’s open meetings and open records laws considering “rapid changes in the dynamics of communication and information transmission” and an increasing number of legal challenges.

“Shining the Light on Kentucky’s Sunshine Laws” is written by Amye Bensenhaver, who retired in 2016 after a 25-year career in the commonwealth’s Office of Attorney General in which she authored around 2,000 legal opinions related to the open meetings and open records laws and recently agreed to join the Bluegrass Institute team as the director of its Center for Open Government.

An online copy of the full report, including its executive summary, is available here.

Bensenhaver was a recipient of a 2017 Bluegrass Institute Liberty Award.

“We are committed to preserving what is best in the open meetings and open records law while at the same time eliminating their ambiguities, conflicts and outdated elements,” Bensenhaver said. “We offer recommendations that will ease the burden on public agencies while also reducing the likelihood of legal challenges, preserving valuable administrative and judicial resources and, most importantly, promoting the goal of open, transparent and accountable government at all levels and in all places across the commonwealth.”

Along with highlighting conflicts between open meetings and open records exemptions, which frequently cause confusion and inconsistencies related to government bodies meeting in closed session, the report also calls for more meaningful penalties as a deterrence for not complying with these laws.

“This report offers thoughtful recommendations for updating the commonwealth’s sunshine laws to reflect rapid advances in communication technology while carefully protecting against diluting the entrenched principles of transparency and accountability,” Bluegrass Institute President and CEO Jim Waters said. “We consider events in the evolution of the open records and meetings laws and make the case for closing loopholes exploited by agencies who receive a significant amount of taxpayer funding while firmly defending citizens’ access to their government’s records.

Please contact the Bluegrass Institute at 859.444.5630 or info@freedomkentucky.com to obtain a hard copy of the report.  

For more information or comment, please contact Amye Bensenhaver at abensenhaver@freedomkentucky.com or 502.330.1816 (cell), or Jim Waters at jwaters@freedomkentucky.com, 859.444.5630 ext. 102 (office) or 270.320.4376 (cell).

 

Location, location, location: What was the JCPS board thinking?

COG LOGOThe old real estate adage, “location is everything,” is roughly equivalent to the statutory recognition in Kentucky’s open meetings law that all meetings of public agencies must be held at “places which are convenient to the public.”

In a recent open meetings decision construing this legal requirement, which is found at KRS 61.820(1), the attorney general recognized that a proper meeting place “must not only be one to which the public is generally invited and may freely attend, but it must also be a place from which no part of the citizens are expressly excluded or who may be excluded by reason of not feeling they may freely attend.” 16-OMD-178, quoting City of Lexington v. Davis.

The attorney general thus reaffirmed the longstanding view that “a public meeting presupposes the right of the public freely to attend . . . .  Anything which tends to ‘cabin, crib or confine’ the public in this respect would be destructive of the right expressly provided.” 02-OMD-078, quoting Davis at 754.

In 16-OMD-178, the attorney general adopted 13-OMD-186 in holding that a city commission improperly conducted a public meeting in a private residence, a place that was not “convenient to the public,” in contravention of KRS 61.820(1). Instead, the attorney general declared, an agency must conduct its meetings in a public building to which attendees are admitted without impediment.

What, then, was the Jefferson County Board of Education thinking when it elected to conduct a recent special meeting to discuss selection of an interim superintendent on a Sunday and in a private law firm located on the 28th floor of a downtown office building which generally limits admittance to business invitees?

The board maintained that “the law office was used so as to not inconvenience district employees who would have to open a building on a weekend.”

However, convenience to district employees is not a requirement of the open meetings law; convenience to the public is.

Leaving aside questions relating to the adequacy of the meeting place as to space requirements, seating capacity and acoustics, the board’s choice was ill-advised and possibly illegal.

It’s our understanding that only three people attended the meeting to monitor the discussion of this crucial matter of broad public interest. Is any greater proof of the board’s poor selection of a meeting place required?

The board’s choice of meeting places, indeed all its decisions with respect to its public meetings, should be driven by the legislative recognition that “the formation of public policy is public business” and not by concerns for the inconvenience of district employees.

While much of the Sunday meeting was conducted in closed session – a decision we previously questioned – we remind the Jefferson County Board of Education that any “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” E. W. Scripps Company v. City of Maysville, 790 SW2d 450, 452 (Ky. App. 1990).

This is particularly true when the meeting involves matters as weighty as the selection of an interim or permanent superintendent for the commonwealth’s largest school district which finds itself under siege on multiple fronts.

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.

Who decides what is ‘good for the public to know’?

COG LOGOWHAS-TV reports that the Jefferson County Board of Education conducted a special meeting on Sunday, four hours of which were devoted to a closed-session discussion of an interim superintendent to temporarily fill the soon-to-be vacant position currently held by Donna Hargens, who will officially step down on July 1.

Board chairman Chris Brady later confirmed that board members had discussed the “qualifications desired in a new hire,” but he was not at liberty to share those discussions. The report did not identify the legal basis for the closed session.

It’s likely that the board relied on the “personnel” exemption to the open meetings law, which authorizes closed-session discussions “which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. . .”  but expressly prohibits “discussion of general personnel matters in secret.”

Therefore, if, in fact, the board discussed the “qualifications desired in a new hire” during its closed session, that portion of the board’s discussion was improper as it goes beyond what the open meetings law allows in closed-session discussions as stated above.

The courts have consistently rejected attempts to expand the exemption beyond its narrow scope by agencies seeking to avoid “unwanted or unpleasant public input, interference or scrutiny.”

Fundamentally, the “personnel exemption” exists to protect individual reputational interests. Such interests are not implicated by a discussion of the “qualifications desired in a new hire.”

Guided by these principles, the attorney general in 2000 determined that although an agency can properly discuss the qualifications of individual candidates for appointment in closed session, it cannot discuss “the process by which the most qualified candidates [will be] selected,” because the latter discussions do not implicate reputational interests. (00-OMD-96).

While the Jefferson County school board’s closed-session discussions with candidates about their individual qualifications for the position were proper, any discussions that did not involve the candidates and/or their individual qualifications, but instead involved a general discussion of the “qualifications desired in the new hire,” exceeded the exception’s intended scope.

The gravity of the board’s apparent error and its potential consequences cannot be overstated.

In Carter v. Smith, the Supreme Court affirmed a lower court’s decision to void a contract for future employment between the retiring school superintendent and the Bourbon County Board of Education.

Citing Floyd County Board of Education v. Ratliff, the court recognized that “[t]he board may have certainly preferred to negotiate the details of [the superintendent’s] arranged exit strategy behind closed doors, but ‘the exceptions to the open meetings law are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny.’”

The court invoked the language of the law’s preamble declaring that “[t]he 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 parents, teachers and children served by the Jefferson County Board of Education have an equal or greater interest in knowing what “qualifications [are] desired in a new hire” for an interim or permanent superintendent as the board itself.

It’s not for their servant, the board, “to decide what is good for [them] to know and what is not good for them to know.”

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.