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.