Friday, August 19, 2016

Beshear issues opinion on replaced Retirement Trustee's appeal

Attorney General Andy Beshear found the Kentucky Retirement Systems Board of Trustees violated the Open Meetings Act twice during a meeting in May.

The opinion, In re: Jim Carroll/The Kentucky Retirement Systems Board of Trustees, dealt with threats by officials that created a “chilling” atmosphere around the meeting.

On May 19, 2016, a month after Governor Matt Bevin ousted board chairman Tommy Elliott, Elliott attended the meeting to take his seat as chairman. This followed an opinion of Attorney General Beshear finding Bevin's action was improper.

Also attending the meeting were Thomas Stephens, Personnel Cabinet secretary, who is also a retirement board member; James Brickman,  Bevin’s chief of staff; Lesley Bilby, executive director of Personnel Cabinet Office of Legal Services, and several state troopers. 

Secretary Stephens and Chief of Staff Brickman indicated and/or threatened the Elliott with arrest under the misdemeanor charge of disruption of a public meeting if he attempted to participate in the meeting. Elliott had led the previous meeting of the board, which took place a day after Bevin removed him. Others in attendance seemed to think the meeting might not be open to the public due to the presence of the troopers.

Secretary Stephens also indicated and/or threatened an investigation of another board member, Vince Lang, if Lang sought to be elected as chair.

First, Attorney General Beshear found the board violated KRS § 61.840, because it placed conditions other than those for maintenance of order on the attendance of a board member. The attorney general's opinion also said that the statute gives the public an almost unconditional right to attend all public agency meetings. Because neither of the threats dealt with the maintenance of order, they were not lawful.

Elliott and the board had a good faith reliance on the earlier attorney general opinion, OAG 16-004, finding his removal was unlawful because the attorney general is chief law officer for the Commonwealth. Disagreement with the opinion does not legitimize the actions that happened at the May 19 meeting, Beshear said. 
Secondly, Beshear took up whether the board violated the Open Meetings Act when several trustees participated in conversations before the meeting with Secretary Stephens and government officials who were not members of the board. Those conversations concerned the indication/threat of arrest and investigation. 

This question, however, was not found to violate the Open Meetings Act because the conversations were not a closed meeting with fewer than a quorum or the trustees. The board did violate the law because a vote on Lang would not have caused a serious disruption, according to the opinion.

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