Practicing what it preaches: House announces closed discussion of pension reform in spite of open meetings mandate

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The Lexington-Herald Leader reports that  “all House [of Representative] members will meet Tuesday in closed session at the Capitol to discuss pension reform.” This is not an auspicious beginning to the legislature’s latest effort to address Kentucky’s pension crisis.

The reasons are as clear as the law the General Assembly enacted more than forty years ago widely known as the Kentucky Open Meetings Act, KRS 61.800 to KRS 61.850.In the legislative statement of policy that governs the open meetings act, “ The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret.”  This unambiguous statement, along with KRS 61.810(1), clearly establishes that “[a]ll 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“ unless the public business to be discussed falls within one or more of the 13 exceptions recognized by the General Assembly and enacted into law.

Under the broadly worded definition of the term “meeting” adopted into law by the General Assembly, this includes “informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting.”

There is no specific exception to the open meetings act for discussion of pension reform. Nor is there a general exception to the open meetings act under which discussion of pension reform falls, even if the exceptions are liberally construed.

And, the General Assembly declares in the legislative statement of policy, “the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.”

Under what legal authority, then, does a quorum of the members of the House of Representatives propose to meet in closed session to discuss pension reform? Shouldn’t the members of the General Assembly be required to play by the rules that they made for themselves and others?

The stated reason for the closed session is to permit House members to “express themselves freely.” Assurances are given that “[n]o straw vote will be taken to determine how members feel on the issue.”

A similar argument was advanced by the House of Representatives in 1993 when its members proposed to meet in closed session to obtain information about then Governor Brereton Jones’s health care reform proposal. In 93-OMD-63 and 93-OMD-64, open meetings decisions issued by the Kentucky Attorney General based on appeals arising from the same facts, the attorney general determined that as a state legislative body the House of Representatives is a public agency pursuant to KRS 61.805(2)(b) and its meetings are subject to the open meetings act.

Moreover, the attorney general reasoned, KRS 61.810(1)(i) creates an exception for closed session discussions of "Committees of the General Assembly other than standing committees.”  If the House of Representatives was, he concluded, “excluded from the coverage of the Open Meetings Act, then the law would not make a distinction as to what kinds of House Committees are excluded from the provisions of the Act.”

The only defense raised by the House in 1993 was the fact that a quorum of its members was not present for the closed door discussion of public business.

In both 93-OMD-63 and 93-OMD-64, the attorney general held that but for the absence of a quorum of the members of the House of Representatives at the closed session meetings to discuss health care reform, the meetings would have constituted a violation of the open meetings act.

The Herald-Leader reports that “all House members will meet” on Tuesday behind closed doors to discuss pension reform. Under these 1993 open meetings decisions, the proposed meeting of a quorum of the members of the House of Representatives at which public business will be discussed will violate the open meetings act if not conducted in open session.

The fact that no action is anticipated, and no straw vote will be taken, does not alter this conclusion. The open meetings act is premised on the statement that the  “formation of public policy is public business and shall not be conducted in secret.” The requirements of the act are triggered if a quorum is present and public business is discussed regardless of whether action is taken. The public is, of course, entitled to know what the final policy is, but it is also entitled to know what information was considered in formulating the policy and how its elected representatives voiced their concerns and positions on the policy.

Certainly no one wants to impede the House of Representatives in the daunting undertaking of pension reform, but the open meetings act must be applied even handedly to those at the highest level of government who enacted it as well as to those for whom it was otherwise enacted. What message does the House of Representatives send to public agencies across the state if it does not practice what it preaches?