Attorney general rules no foul in UofL open meetings challenge, but the public's right to know is penalized

COG2

When the legislature enacted KRS 61.810(2) in 1992, it did so with good intentions. The Open Meetings Act had prohibited secret meetings of a quorum of the members of a public agency where public business was discussed or action taken since its enactment in 1974.But agencies quickly found ways to circumvent the Act by holding serial less than quorum meetings where consensus was secretly reached. No quorum was “present” during any of these meetings, but the members attending the meetings collectively constituted a quorum.

The effect of these “floating” or “rolling” serial less than quorum meetings was the same as the effect of a secret meeting of a quorum: the public was denied its legal right to monitor the discussions that went into  the “formation of public policy.”

In enacting KRS 61.810(2), lawmakers recognized that “[a]ny series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency” are public meetings under the Act and must be open to the public.

Clear enough. Agencies could no longer evade open meetings compliance by discussing public business in a secret meeting of a quorum of their members or in a series of less than quorum meetings.

At this point, the legislature apparently got cold feet. Lawmakers retreated from the strongly worded statement of prohibited conduct found in KRS 61.810(2) by requiring proof that the serial meetings were “held for the purpose of avoiding the requirements” of the Open Meetings Act.

Consider the challenge to the public of obtaining proof that the agency members intended to violate the Act and the ease with which the agency could refute that proof by submitting affidavits from the members attesting to their innocent participation in the serial meetings.

Lest KRS 61.810(2) have any real impact, lawmakers inserted an additional loophole that permitted serial less than quorum meetings “where the purpose of the discussions is to educate the members on specific issues.”

Not surprisingly, agencies regularly raise this defense when they are accused of violating KRS 61.810(2).It is, in fact, the defense that the University of Louisville Board of Trustees raised in fending off a legal challenge arising from a September 27 press conference in which Board Chairman David Grissom “told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal,” and indicated that “every trustee told [him] they supported acting President Greg Postel's decision to suspend athletic director Tom Jurich and men's basketball coach Rick Pitino.”

It is also, unfortunately, the basis on which the Kentucky Attorney General affirmed that action.

Relying on that portion of KRS 61.810(2) which excludes discussions held for the purpose of educating members from the prohibition on serial less than quorum meetings, UofL defended the telephonic meetings between Grissom and the Board members as “informational” and “advisory.”

And in 17-OMD-222  the attorney general agreed with UofL.

In what can only be described as a confusing analysis both legally and factually, the attorney general determined that “The U of L Board did not violate the Open Meetings Act by informational calls made by the Interim President to board members notifying them of the decision to place Mr. Jurich on administrative leave.”

The complainant did not allege, nor did the evidence support, a series of telephone calls placed by  the university president to the individual board members. The complainant alleged -- and the evidence incontrovertibly supported -- a series of telephone calls placed by the chairman of the board to the individual board members. The attorney general’s understanding of the underlying facts is curiously flawed.

This error aside, the attorney general casually accepted the board’s defense that the series of less than quorum telephonic meeting --  in which board members collectively constituting a quorum participated --  were informational only notwithstanding the fact that Grissom, himself, stated in a press conference that he contacted the members by telephone to “get their take on how best to respond” to the scandal and that every member expressed support for President Postel’s decision to suspend the key players.

This suggests not just the sharing of information but also discussion of alternatives (“how best to respond”) and  expressions of opinions (“expressed support”) on a matter with which the board of trustees was ultimately entrusted, specifically, Jurich’s future employment at the university.

In fact, it sounds a lot like the beginning of “the formation of public policy.”

KRS 61.810(2) does not require proof that the members took action. Their discussion of public business was sufficient to trigger the KRS 61.810(2) requirement of an open meeting even if that portion of the meeting relating to discussion of Jurich’s discipline or dismissal was conducted in a properly convened closed session.

The casualness with which the attorney general approached this issue will embolden other public agencies to exploit the loopholes in KRS 61.810(2) that essentially render it a nullity. Short of an admission by agency members that their goal was to avoid the requirements of the Open Meetings Act and that they took action on a matter with which they were entrusted, 17-OMD-222 suggests he is willing to give them a pass.

In a report issued earlier this year, the Bluegrass Institute Center for Open Government recommended elimination of both of the loopholes in KRS 61.810(2).  We proposed a zero tolerance statute. The benefits would be twofold. First, public agencies could no longer evade accountability by the simple expedient of feigning ignorance of their statutory duties. And second, the public could assert the right to monitor discussion of the same information presented to the members so that the public and the members would be equally well educated on specific issues.

The net effect would be a slam dunk for open government.