Monday, December 17, 2018

Attorney general opinions deal serious blow to provisions of Open Meeting Law

By Amye Bensenhaver
for the Scripps Howard First Amendment Center
Three recent open meetings decisions issued by the Kentucky Attorney General have resolved the underlying open meetings disputes in favor of the public agencies whose actions were challenged. These decisions were issued despite the legislative recognition that “the formation of public policy is public business” and the judicial recognition that the “[f]ailure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” 
On May 16, the attorney general determined that the Kentucky Board of Education did not violate the open meetings law when it failed to take a statutorily required vote on a motion to conduct a closed session. 
On May 30, the attorney general ruled that the Eastern Kentucky University Council on Academic Affairs was not a public agency under the statutory definition of the term and therefore not required to comply with open meetings requirements. 
And on June 14, the attorney general concluded that the Villa Hills City Council in Northern Kentucky did not violate statutes relating to meeting room conditions when people wanting to attend the meeting were denied entry because of crowded conditions.
In re: WDRB News/Kentucky Board of Education18-OMD-094, involved a widely publicized meeting of the state board of education at which then Department of Education Commissioner Steven Pruitt resigned near the conclusion of a marathon closed meeting conducted erroneously, the attorney general concluded. KRS 61.810(1)(f) permits agencies to conduct private discussions that might lead to the appointment, discipline, or dismissal of an employee. The attorney general recognized that a discussion of “an amendment” to Pruitt’s employment contract was not a legitimate topic for a closed session under the law and that the board violated the open meetings law by conducting a four-hour discussion of the unauthorized topic.
The attorney general did not, however, find any violation of the open meetings law based on the board’s failure to take a vote on the motion to conduct a closed session. KRS 61.815(1)(b) states that “[c]losed sessions may be held only after a motion is made and carried by a majority vote in open, public session.” Relying on a footnote from an open meetings decision issued in 2012, resolved on other legal grounds, the board argued that the law does not require “a verbal vote before going into closed session” and that the board fulfilled its legal obligation by “collectively [leaving] the boardroom without objection.” The attorney general accepted this argument. Citing numerous legal authorities recognizing that the necessity of strict compliance with the open meetings law, the attorney general nevertheless concluded that he could not “read a requirement into the statute that does not otherwise exist.”
Nor, however, could he read a requirement out of the statute that is found in existing law. 
This holding eliminates an unambiguous requirement that has existed in the law for decades. A “vote” is commonly understood to be a formal indication of a choice between two courses of action expressed by a show of hands or by voice.  Pursuant to KRS 61.835, it must be accurately recorded in the meeting minutes. The first and most obvious question the attorney general’s holding raises is how will the “vote” be recorded in the minutes of the meeting. The second and perhaps more serious question is how far will the holding be extended.
Two weeks later, the attorney general issued 18-OMD-101, In re: Nancy McKinney/Eastern Kentucky University, in which he held that the university’s Council on Academic Affairs, which is identified on the university’s website as “the major policy-making body for academic programs,” is not a public agency because it “is not created by the Board of Regents or by legislative act, but by a single person, the Provost,” and it “functions to advise the Board of Regents, with no policy or decision-making authority.” In affirming the position that the council is not a public agency because it is too remote from the decision-making process, the attorney general rejected proof that the council is a standing committee of the university that, according to its weblink,  “processes, reviews, and votes on the approval or disapproval of curriculum changes including new courses, course revisions, course deactivations, new programs, program revisions, program suspensions, new policies, and policy revisions” and that its “[m]ajor actions. . . are reviewed by the Faculty Senate and subsequently presented to the president of the university and the Board of Regents for final approval.”
The term “public agency” is broadly defined at KRS 61.805(2) to ensure that the public interest in “the formation of public policy” is not abridged by the exclusion of committees through a narrow construction of the term. By limiting the expansive sweep of the definition, 18-OMD-101 “thwarts the intent of the law,” has implications far beyond the EKU Council on Academic Affairs.
The attorney general issued 18-OMD-118, In re: Steven Schletker/City of Villa Hills, on June 14 affirming a city council’s actions in addressing overcrowding at a regular meeting attended by a large group of citizens, many of whom were denied access to the meeting room. The attorney general concluded that the council “took what limited action was feasible to ensure public participation, by inviting the people in the hallway to come into the council chambers” notwithstanding fire code restrictions limiting room capacity, the absence of available seating, and the fact that least 25 attendees remained in an outer hallway.
The attorney general acknowledged that in 2013 the General Assembly amended two open meetings provisions to address the issue of overcrowding. KRS 61.820(1), as amended, states that “[i]n considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics.” KRS 61.840, as amended, also directs public agencies to “provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings.” Nevertheless, the attorney general rejected the complainant’s argument that the council’s efforts to relieve the overcrowding issue were inadequate under these amendments, focusing on the fact that the council had conducted past meetings in the same meeting room, that it had no reason to expect a larger than normal crowd, and that alternative meeting sites were not immediately available.
18-OMD-118 relied, in large part, on open meetings decisions and a Supreme Court case, Knox County v. Hammons, that pre-date the 2013 amendments, making only passing reference to the additional responsibilities imposed by those amendments. In the earliest of these open meetings decisions,  97-ORD-28, the attorney general held that “a public agency confronted with a crowd that is larger than anticipated is ‘under a duty to make some attempt to correct the matter.’” In that decision, the attorney general concluded that although the open meetings law did not “specify the particular action an agency must take,” the agency violated the law by failing to make even “reasonable efforts . . . to provide a place where the public could effectively observe.”
Since the 2013 amendments, the open meetings law is far more specific as to the particular action an agency must take to address overcrowding. By applying the pre-amendment statutory language and analysis, focusing on the “feasibility” of alternative action, and largely overlooking the fact that at least 25 people were unable to enter the room, take seats, and “observe the meetings with their eyes and ears,” 18-OMD-118 effectively nullifies these amendments. 
The net effect of each of these open meetings decisions is to narrow the scope and application of the open meetings law in violation of “the public good."

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