"What is the harm" when an agency conducts the public's business privately?

Nearly five years after the Advocate-Messenger issued an open meetings challenge to the Danville Board of Commissioner’s actions in purchasing a building to house its public works department, the Kentucky Supreme Court heard oral arguments in the case on August 16, 2017.So much for “proceedings arising under [the judicial enforcement provision of the open meetings law] tak[ing] precedence on the docket over all other causes.” Five years seems a long time to wait for finality.The issue before the Court in Board of Commissioners of the City of Danville, Kentucky v. Advocate Communications, Inc., D/B/A The Advocate-Messenger is the propriety of the board’s closed session discussion of the building’s purchase under KRS 61.810(1)(b), its failure to take final action on the purchase in open session,  and its failure to respond to the Advocate-Messenger’s open meetings complaint.This is not a typical case arising under the exception authorizing closed session “deliberations on the future acquisition or sale of real property by a public agency, but only when publicity would be likely to affect the value of a specific piece of property to be acquired for public use or sold by a public agency.” Given the unusual circumstances surrounding the purchase and the Advocate-Messenger’s decision to withdraw its proposed remedy to nullify the contract to purchase the building, the Court questioned how it could develop a precedent for other cases.At one point Justice David Venters asked the attorney for the Advocate-Messenger, veteran open records and meetings champion Jon Fleischaker, to identify the injury to the public resulting from the execution of the contract to purchase the building.Without missing a beat Fleischaker responded, “It is the violation of the open meetings law.”He is, of course, right. It is the act of depriving the public of its right to know how its elected officials conduct its business.The backstory in the case of this $1.23 million purchase is a complicated one. It begins with the city’s lease of the building for its public works department in 2004, the expiration of that lease in 2011, a subsequent month to month lease, and the later approval by the board of a search for a new facility at a budgeted amount of $2 million.On July 17, 2012, the building’s owner announced an absolute auction of the building to be conducted on August 10. Anticipating that auction, at a July 23 public meeting the board went into closed session to discuss the purchase of the building, which had been appraised for $1.5 million.The facts and law become murky at this point. It is not disputed that the board privately authorized the city manager to engage a bidding agent, a local realtor, to bid on the property at the auction and set a maximum bid of $1.5 million. At the August 10 auction, the city’s agent made the winning bid. The city manager thereafter signed a contract to purchase the building and tendered a $123,750 down payment.None of these events were discussed in any open session at any public meeting.On August 13, the board held another meeting. It emerged from another closed session and approved the purchase contract and the already executed down payment. It was at this point that Danville’s residents first learned that their officials had purchased the building.The Advocate- Messenger subsequently challenged the board’s actions under the open meetings laws to the attorney general. In 12-OMD-179 that office ruled that, “The public was entitled to know each [Board] members’ position on the purchase of the [building]at the time the agreement was reached to extend a bid and not after the purchase was consummated. Although its intent in failing to conduct a public vote on the purchase may have been prompted by a desire to acquire the building at the least cost and in the most fiscally responsible way, the [Board] did not enjoy the privilege of cloaking its final action in secrecy, and its decision to do so” violated  the open meetings law.To paraphrase Fleischaker in his argument to the Court, the city’s position is premised on the belief that  it was permitted to violate the open meetings law if there was a “good fiscal reason.” Its position is flawed. Even if public discussions put the city at a disadvantage, its elected officials did not have the authority to abridge the open meetings law and the public’s right to know.The Boyle Circuit Court endorsed this reasoning as did the Kentucky Court of Appeals. The ball is now in the hands of the Kentucky Supreme Court.I learned long ago not to try to predict the likely outcome of a case based on the Court’s interaction with counsel. This much is clear: the legislature has fixed the scope of permissible closed session discussion, and public agencies have no authority to exceed the permissible scope. The injury to the public lies in the violation of the law and – ultimately -- the breach of the public trust.