Frankfort paper calls Kentucky State's 'gag order' outrageous, at odds with a university's mission

This editorial from The State Journal in Frankfort is published in its entirety because the newspaper's editorials are behind a pay wall.

A gag order is a means, usually issued by a court, for restricting information from being made public.

A judge may not want sensitive information from a closed hearing to be discussed publicly, may need to protect the privacy of victims or minors, or may feel it necessary to keep trade or military secrets from being revealed.

Negatively, however, gag orders may also be used as a form of censorship to limit freedom of expression or freedom of the press.

State Journal editorial cartoon by Linda Boileau

Unbelievably, a type of gag order is apparently in existence at Kentucky State University after being discussed at its Board of Regents meeting Wednesday in Lexington.

Regents discussed that if approached by a student, staff member or faculty member, they should refer them to KSU President Mary Sias, who will in turn speak to Board Chair Karen Bearden to place them on the agenda to speak at a future board meeting.

Furthermore, the board also discussed how to react when approached by a reporter wishing to speak to them about a dissenting vote on an issue. Bearden asked them to respond with “no comment” and inform her about it, so she could contact Sias about the best way to respond.

This discussion by a public university’s board of regents — at any college or university — is not only outrageous, but is completely incongruous with what we hope college students are being taught.

A majority of the regents are not employees of the university. While the board includes a faculty, staff and student representative, the other eight are appointed by the governor. No one is higher on the organizational chart than a member of the Board of Regents. They do not report to the university president, rather the university president reports to them.

A member of a school’s faculty or staff may feel so deeply about an issue he or she wishes to speak to a board member rather than an administrator. If the policy is to tell that person to instead speak to the university president, faculty and staff members would certainly be more reluctant to come forward.

Plus, they may wish to speak in private, not be placed as an item on a future meeting agenda.

The men and women appointed to university boards should be thoughtful, intelligent people. They have offered to serve in a leadership role at an institution of higher learning and they bring together diverse and varied views and backgrounds.

So we refuse to understand why they wouldn’t be allowed to speak — and more importantly wouldn’t want to speak — to faculty, staff or a member of the press.

We know we are outraged by the actions of the board and we believe others should be as well, among them the governor, the taxpayers, the faculty, the staff and the students.

The members of the Board of Regents are not appointed to be puppets and mimes. They are appointed to be independent thinking individuals willing to express their viewpoints.

There are important reasons why laws govern open meetings and open records, especially that the public has the right to know how its tax dollars are being spent.

Similarly, appointed and elected individuals should have every right to speak freely to those they oversee and those who report on their actions.

That the Kentucky State University Board of Regents would essentially decide to say no comment until they ask the university president how they should respond is a slap in the face of all that governing boards should be about.

We suggest the members of the KSU Board of Regents undo this ridiculous policy or let the governor find people willing to intelligently speak to the public that he can appoint to replace them.

Illegal meetings held by Danville commission, court says; and by Murray regents, attorney general says

"Two rulings came this week — one in circuit court, one by the attorney general — that public agencies have violated the state’s open meetings law," David Thompson writes in his weekly missive as executive director of the Kentucky Press Association.

"In Boyle Circuit Court, a judge ruled Thursday that the Danville City Commission held an illegal session and in the much-publicized Murray State University situation, an AG’s ruling on Wednesday said the Board of Regents violated the law by discussing the MSU president’s situation the night before the board’s official meeting."

Thompson's post has a short story from Todd Kleffman of The Advocate-Messenger and draws from a story in The Paducah Sun distributed by The Associated Press. To read it, click here.

Attorney general rules Louisville's University Hospital is a public institution

Louisville's University Hospital is a public institution, not a private one, which means the state gets a say about the proposed merger between the hospital, Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health System, Attorney General Jack Conway said in an open-records decision Wednesday.

Conway said University Medical Center Inc., which runs the hospital, "was established and created and is controlled by the University of Louisville." U of L has long claimed University Hospital is private and refused to hand over records requested by the ACLU of Kentucky and The Courier-Journal. The ruling means the documents pertaining to the merger itself would have to be made public. Because it deals with an open-government issue, that part of Conway's opinion has the force of law unless overturned in court.

"The finding reinforces the earlier positions by Conway and Gov. Steve Beshear that the deal cannot take place without the approval of state government, which owns the hospital property and granted the contract for University Medical Center to operate it," The C-J's Patrick Howington reports. U of L had said the hospital is private because it is run by a corporation. (Read more)

The ruling could affect the merger because of the religious implications. Saint Joseph is owned by Catholic Health Initiatives, which follows Catholic directives that prohibit abortion, sterilization and euthanasia. For more on the merger, click here.

AG says U of L physician groups tied to Passport must release salaries, other financial data

Two groups representing the University of Louisville's faculty physicians have been deemed public agencies and are subject to the state open-records law, Attorney General Jack Conway has ruled. He said the groups violated the Open Records Act when they denied a request by The Courier-Journal's Tom Loftus for five years' worth of records showing employee salaries, sources of income and expenses. U of L doctors have a majority on the board of Passport Health Plan, which manages the Medicaid program for Jefferson and 15 surrounding counties.

The matter concerns the University Physicians Association and the University of Louisville Physicians. In December, Loftus requested the salary and expense documents after state Sen. Tim Shaughnessy of Louisville, right, asked the state Cabinet for Health and Family Services to "examine the flow of Medicaid funds from the state through Passport to UPA," Loftus writes. State Auditor Crit Luallen did not look into the issue in her November report, which pointedly criticized Passport for excessive spending and conflicts of interest.

Though the physician groups contended they were non-profit corporations, Conway said UPA is a public agency "because it was established and created, and is controlled, by the University of Louisville School of Medicine," Conway concludes. "In all material respects, ULP mirrors UPA in the manner of its establishment, creation and control ... We are not prepared to casually dismiss these facts as 'coincidence born of practicality,' and instead find that ULP and the School of Medicine 'act as one and the same.'"

In its articles of incorporation, UPA says its mission is "to further the research mission and teaching of the praction of medicine at the University." Moreover, UPA and ULP were established and continue to be run by U of L medical school administrators, department chairs and professors. "We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors to establish and create UPA defies logic."

Shaughnessy was impressed with the findings. "It causes me to ask: How could they think they are not a public entity? What remains to be seen is whether the university accepts this ruling or continues its arguments that it is not subject to public openness." (Read more)

UK trustees vote to keep presidential search confidential until the final phase

The names of finalists to be the new president of the University of Kentucky will be released only if all of them agree to the disclosure, and if not, only the university trustees' preferred candidate will be introduced to the campus community before being hired, the trustees agreed yesterday.

Trustee Jim Stuckert, chairman of the presidential search committee, "said the confidentiality provision was critical to applicants," the Lexington Herald-Leader reports, quoting him as saying, "We've got people waiting in the wings predicated on these motions." Britt Brockman, chairman of the Board of Trustees, told Becca Clemons of the Kentucky Kernel Monday that the search committee "has been extremely impressed by the breadth and depth of the field." The committee is scheduled to meet today to screen candidates; interviews are scheduled for March 22-23. (Read more)

At yesterday's meeting Brockman called the decision “a nice compromise . . . between public interest and transparency.” He said it would ensure input from the campus community and UK alumni, Nancy Rodriguez of The Courier-Journal writes, "while also protecting the privacy of candidates who might otherwise be scared away from applying out of concern they might lose their jobs at other institutions." (Read more)

There were misgivings. The Herald-Leader's Cheryl Truman reports, "Staff trustee Sheila Brothers said that she would vote for the confidentiality motion, but wondered whether she was getting reliable information about the importance of a closed search, saying she thought there is 'a vested interest in keeping the process closed.'" (Read more)

UK researchers had no right to demand return of document distributed to focus group, AG rules

University of Kentucky researchers improperly refused to allow an audience member to keep material that had been handed out at a focus group session in Paducah, the state attorney general's office ruled last week.

The university was correct in refusing an open records request for the names of participants in a focus group conducted by the Kentucky Research Consortium for Energy and the Environment but did not have the right to insist on return of "visualizations" given out at a subsequent session, the decision said.

The consortium has been studying possible uses for the Paducah Gaseous Diffusion Plant, which enriches uranium. One member of the audience, Mark Donham, had refused to return a document he was given, a computerized "visualization" of the site as a nuclear power plant, one of the uses being considered. After an argument, university representatives threatened to call the police. Donham returned the material then filed an open records request.

The attorney general ruled that the researchers could legally refuse to identify the members of the focus group because they had been promised confidentiality, but there was no such promise regarding the handout materials. "Having afforded Mr. Donham the opportunity to inspect the visualizations, without enforceable restrictions on disclosure, he must be provided with copies of these records," the decision said.

AG slaps Jefferson school board, KCTCS for secrecy surrounding executive evaluations

The Jefferson County Board of Education can't hide from "unwanted or unpleasant public input" in evaluating Superintendent Sheldon Berman, Kentucky Attorney General Jack Conway ruled Tuesday.

The ruling said the board violated the state's open-meetings law when it made its annual evaluation of Berman in a closed session July 29, despite a 2008 attorney general's opinion that such evaluations must be made publicly unless they might lead to discipline or dismissal. Berman's evaluation was positive, though the board urged him to improve his interaction with the board, the community and parents.

The decision came in response to a complaint by The Courier-Journal, which disclosed the ruling in a story today. Board chair Debbie Wesslund told the Louisville newspaper that she disagreed with the opinion, and would consult with the board and lawyers in deciding whether to appeal. The 2008 decision, which involved a similar case in Spencer County, is under appeal in circuit court.

In a similar case, Conway issued a ruling Tuesday that the Kentucky Community & Technical College System violated the Open Records Act when it refused to give its evaluation of former president Dr. Paula Gastenwald to the Owensboro Messenger-Inquirer. Gastenwald was removed as president by the KCTCS board earlier this year. The attorney general said the public's interest in the case outweighed any privacy interst of Gastenwald. "The public is entitled to know why Dr. Gastenwald was removed," the opinion said.

Full texts of attorney general opinions in Open Meetings/Open Records cases can be found through Links of Interest at the bottom of the KOG Blog.