“It was a meeting regardless of whether anything was said. It appears to be a political decision where they didn't want to take on the hard issues."

This statement by long time open meetings and open records advocate Jon Fleischaker flies in the face of the law he helped to write in the seventies. It appears in an August 28  Courier- Journal article that is critical of the Attorney General’s decision, 17-OMD-166, in an open meetings appeal involving an inspection of the Governor’s private residence by the Board of Assessment Appeals.

In fact, the open meetings law clearly states, “All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times.”

But resolution of the issues presented in an open meetings appeal are rarely as simple as Mr. Fleischaker’s statement would suggest. The attorney general’s staff is regularly asked to review a bare record -- consisting of a written complaint that an agency violated the open meetings law and an agency’s written response denying the violation – and issue a decision within ten business days stating whether the agency in fact violated the open meetings law. Since August 1, the staff has issued a total of 14 decisions, six of them open meetings decisions. Lest there be any doubt, that is a high rate of production.

The record in this appeal established that a meeting occurred at which a quorum of the members of the board was present. The term meeting is broadly defined  to include ”all gatherings of every kind . . . regardless of where the meeting is held.” The open meetings law could therefore be said to apply any time a quorum of an agency’s members attend a football game, or a church service or a social event but for the requirement – yes, requirement – that public business be discussed or action taken.

Was this a football game, church service or social event? Absolutely not!

It was one of the rare instances when this well-crafted law is inadequate to address unanticipated facts. It seems highly unlikely that the framers of the open meetings law – including Mr. Fleischaker – pondered the implications of an inspection of a private residence by a quorum of the members of the Board of Assessment Appeals when they established the law’s fundamental mandate, namely, that all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken must be open to the public.

Was public business discussed?

The board states that it was not, the members having agreed to conduct the inspection without comment. “To conclude that no public business was conducted during the inspection” Courier-Journal Executive Editor Joel Christopher remarked in the article, “requires you to believe that no members of the board talked or otherwise communicated with each other at all during the tour of the mansion." But this – for all the innuendo and doubt cast on the open meetings decision in this case – is the factual basis on which the assistant attorney general to whom the appeal was assigned was required to make his decision.

Proof to the contrary would have yielded an entirely different outcome as the decision clearly states.

To suggest that the decision was political because it was not resolved in the Courier’s favor does great injustice to that assistant attorney general, one of two merit employees who have assumed an enormous workload since an unfilled vacancy was created by my reluctant departure last August.

To suggest that the open meetings law does not require a discussion of public business, in addition to a meeting of a quorum of the members of a public agency, does even greater injustice to the clear statutory language.

The Kentucky Supreme Court said it best in Yeoman v. Commonwealth, a case involving the presence of a quorum of the members of a public agency at a conference sponsored by an outside entity, “The mere fact that a quorum of members of a public agency are in the same place at the same time, without more, is not sufficient to sustain a claim of a violation of the Act. For a meeting to take place within the meaning of the act, public business must be discussed or action must be taken by the agency.”

Though the result is one that frustrates proponents of open government, the attorney general’s decision in this appeal was based on the law and the facts. It was correct.