Unringing the bell: why open meetings remedies are often unsatisfactory

COG2

One of my first undertakings as director of the Bluegrass Institute’s Center for Open Government was an open meetings challenge to the Jefferson County Board of Education’s decision to conduct a board meeting in a private law office on the 28th floor of an office building in downtown Louisville.

The Open Meetings Law requires public agencies to conduct their meetings at times and places convenient to the public. We alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location.

We cited legal authorities predating the enactment of the Open Meetings Law by 25 years and as recent as 2016  recognizing that a public meeting must be held in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

Not surprisingly, we prevailed on this legal issue when it was presented to the Office of the Attorney General on appeal.

The attorney general was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute — who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon —  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

JCPS was not persuaded. WDRB reported that in responding to the open meetings decision, the board chair “criticized as ‘ludicrous’ the Bluegrass Institute’s claim that it found the doors of PNC Plaza locked when it tried to access the building on Sunday, July 9. ‘The only thing this group has done has guaranteed that any time there is a special meeting, even on weekends, that there will be a cost incurred by the taxpayers of Jefferson County.’”

In addition to identifying the alleged violation in our open meetings complaint, the law also required us to propose a remedy. We proposed that the Jefferson County Board of Education acknowledge its violation of the open meetings requirement that all public meetings be conducted at times and places convenient to the public.

Other than its dismissive comments to WDRB, the board remained silent.

Accordingly, on September 13 the Bluegrass Institute mailed a letter to the board “to demand compliance with the remedial measures [we proposed], which now bind the Jefferson County Board of Education, and written verification of compliance.”

Again, the board remained silent.

Therein lies the greatest frustration with the Kentucky Open Meetings Law. Unlike those agencies – which are few and far between – that acknowledge error and commit to a future course of compliance with the law, many agencies openly disregard their express statutory duties and the attorney general’s legally binding rulings.

And the minimal penalties that the law currently imposes do little to deter this misconduct.

In an open records appeal, the remedies for noncompliance are clear: disclosure of the wrongfully withheld records. And – since 2016 when the Kentucky Court of Appeals affirmed a lower court’s assessment of penalties and attorneys’ fees in excess of $1 million – a “liberal reading of those provisions aimed at the meaningful punishment of those who willfully obfuscate the public's ability to examine non-exempt records.” In an open meetings appeal, the remedies for noncompliance are often gestures: an admission of error, an adjustment in practice, and an occasional attempt to publicly reconstruct discussions improperly conducted in secret. Training on open meetings is only valuable as a remedy if the trainer is thoroughly steeped in the law and its underlying policies and the agency members are truly receptive.

It is not valuable if the trainer actually believes that open meetings compliance is “all about the money.”

Nevertheless, the courts have twice shown a willingness to impose the harshest existing penalty in the Open Meetings Law on noncompliant public agencies in recent years. When an agency takes action that is not in “substantial compliance” with the Open Meetings Law, that action “shall be voidable by a court.”  In 2012, the Kentucky Supreme Court affirmed the trial court’s opinion voiding a contract for consulting services entered into by a school board and its departing superintendent when the board “entirely failed to comply with the law.”

One year later, the Court of Appeals affirmed the trial court’s opinion voiding a school board's legal challenge to a recall petition for an ad valorem property tax based on the board’s failure to comply with the Open Meetings Law.

This was the remedy originally sought, but later withdrawn, by the Advocate Messenger in its successful open meetings challenge to the Danville Board of Commissioners’ secret discussion of the purchase of a building earlier this year. Had it not done so, that purchase might have been voided by the courts as well.

As for the Jefferson County Board of Education, the issue under discussion at its illegal April 30 meeting was nothing less than the candidates for interim superintendent. The board’s attitude toward the Bluegrass Institute’s legal challenge – and the attorney general’s legally binding conclusion that it violated KRS 61.820 – might not have been so cavalier had this matter proceeded to the courts and the courts, in turn, voided action taken at or resulting from that illegal meeting.

Perhaps it’s time to consider even harsher penalties – or at a minimum -- equipping the public with the resources necessary to pursue open meetings disputes through the courts. Or perhaps it’s time public agencies wake up to the reality that “[t]he failure to comply with the strict letter of the law in conducting meetings violates the public good.”