AG rejects Finance argument that secrecy ensures integrity in State Journal open meetings appeal (with an assist from the Bluegrass Institute)

COG2

The State Journal  prevailed in an open meetings appeal to the Office of the Kentucky Attorney General in a decision issued on October 6, 2017 -- 17-OMD-207 -- and the Bluegrass Institute Center for Open Government played a role in its victory.

Assistant Attorney General Matt James ruled that the Finance and Administration Cabinet’s refusal to publicize -- and admit the public to --  meetings of the Capital Plaza built-to-suit selection committee violated the Open Meetings Act. The Center for Open Government worked closely with the State Journal in formulating the arguments and drafting the complaint that culminated in the newspaper’s successful appeal to the attorney general.

The Capital Plaza built-to-suit committee was created under authority of KRS 56.8163(1). The Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute.” The committee is therefore a public agency. Simple, right?

Not so for the Finance Cabinet and its legal staff. They insisted that an obscure advisory opinion issued by the attorney general in 1992 -- relating to sub-delegation of adminstrative responsibilities in a university setting -- trumped the express language of these two statutes.

The cabinet did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.

Instead, the cabinet focused on the fact that the committee members’ identities would be disclosed if its meetings were conducted in public, exposing the members to potential improper contacts and influence.

Assistant Attorney General James rejected that argument, noting that “there is always a risk of improper contact in any issue of public importance,” and “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Thus, James summarily rejected the Finance Cabinet’s attempt to turn the notion that “sunlight is the best disinfectant” on its head.

To be clear, KRS 56.8169 authorizes the committee to discuss specific proposals in closed session. Neither the State Journal nor the Center for Open Government disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committee’s permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.

Once again, the Bluegrass institute is pleased to have assisted in securing the proper resolution of this important legal issue and advancing the principles of open government.

The open meetings law affords the Finance Cabinet 30 days to appeal the attorney general’s open meetings decision to the Franklin County Circuit Court. If the cabinet chooses not to pursue this course of action before 30 days has elapsed, 17-OMD-207 will have the force and effect of law and bind the parties.