Office of the Attorney General issues opinion: NKU violated Open Meetings Act at WNKU meeting

By Mark Hansel
NKyTribune managing editor

The Kentucky Office of the Attorney General (OAG) has determined that the Northern Kentucky University Board of Regents (BOR) violated the Open Meetings act at the Special Meeting conducted February 14.

Photo credit: Alec Reynolds, The Northerner

It was at that meeting that the BOR voted to approve entering into negotiations with Bible Broadcasting Corporation to sell WNKU.

The Northern Kentucky Tribune asked the OAG for the opinion because the BOR emerged from an executive session and proposals to purchase WNKU and its assets were discussed, voted on and unanimously approved by the Board, as acknowledged by NKU legal counsel. The posted agenda, however, identified only an executive session.

The OAG’s opinion identified the following violation:

Northern Kentucky University violated the Open Meetings Act in providing an insufficiently specific special meeting agenda, but did not did not further violate the Open Meetings Act in failing to indicate that a vote may be taken on the topics discussed in that executive session.

The Tribune contended that the Board of Regents violated KRS 61.823 (3) by failing to limit its actions to items listed in the meeting agenda, a requirement for a special meeting.

To understand why the Tribune believes the agenda violated the KRS, one must first recognize the distinction between a regularly scheduled meeting and a Special Meeting.

Prior to a regularly scheduled meeting, a governing body provides an agenda to all interested parties upon request. This type of meeting is scheduled well in advance and the NKU BOR has its meetings for 2017 posted on its website.

Items can be added to the agenda at a regularly scheduled meeting up to, and even during a meeting.

Page 1 of the seven-page decision by the Kentucky Office of the Attorney General determining that the Northern Kentucky University Board of Regents violated the Open Meetings act at its Feb. 14 meeting. The full opinion is available upon request (click to enlarge).

The requirements for a Special Meeting, however, are much more restrictive. As stated in KRS 61.823 (3):

The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.

Here is the entire agenda for the February 14, Special Meeting:

AGENDA

Northern Kentucky University

Board of Regents Meeting

NKU, Student Union 104 – Tuesday, February 14, 2017– 8:30 a.m.

8:30 a.m.

 Call to Order

 Roll Call

Executive Session

There is no mention of any agenda items or additional action at the conclusion of the executive session.

In the news release announcing the Special Meeting, Amanda Nageleisen, then-director of public relations for NKU states, “The only item on the agenda is an executive session,” further confirming the limited scope of the proceedings.

In its response to the Tribune’s appeal to the OAG’s office, NKU stated, in part:

It is NKU’s belief that since it was possible that the Board would not have returned to open meeting, to discuss and ultimately authorize the President to finalize the sale of WNKU and its assets, that listing this item on the agenda in advance was not appropriate. However, in hindsight, NKU can understand why listing this item in advance may have been preferable due to the events that occurred.

When placing an item on the agenda, the Board can identify it for “discussion and possible action,” which would not require a vote, or table it for consideration at a later date. Either would have seemingly been more appropriate in this instance.

The Board of Regents is governed by Kentucky Revised Statutes regarding meetings because NKU is a public university and the BOR, according to its bylaws, is responsible for the effective governance of the University under KRS 164.350.

Boehne

As such, the same rules apply to BOR meetings as those of any city or county governing body in the Commonwealth.

The BOR is only required to give 24-hour’s notice for special meeting, but if it had identified discussion of the potential sale of WNKU and its assets in an agenda, even with the shorter window, the Tribune, and almost certainly other media outlets, would have informed the public online and through social media.

It is the opinion of the Tribune that by allowing public discussion, then voting on an item not listed on the agenda, the BOR not only limited input to those who had prior knowledge of the executive session topic, it violated the very statute designed to ensure such actions cannot occur.

The possible sale of WNKU and its assets has been the subject of much debate throughout the region. There was some public input allowed, and significant media coverage of the meeting, but the Tribune has heard from people who indicated they would have welcomed the opportunity to weigh in on the matter had they known it was being considered.

Full disclosure – The Tribune did not attend the meeting, but confirmed the events that it contends violated Kentucky Revised Statutes through conversations with Board Chair Rich Boehne and correspondence with NKU legal counsel. Media reports, which Boehne verified as accurate, also provided additional confirmation of some details.

Regarding the vote itself, the OAG’s opinion states in part that “while it may be best practice to indicate that a vote may be taken in open session after a closed session on an item on a special meeting agenda, it is not in itself a violation of fair notice.“

The Tribune respects the opinion of the OAG and appreciates the decision in its favor on this issue.

There is concern, however, that if a governing body is allowed to omit an item from an agenda in a Special Meeting, add it at the meeting, then discuss and vote on it, the requirement that “action at the meeting shall be limited to items listed on the agenda in the notice,” becomes meaningless.

The Tribune also appealed whether the exception which authorizes closed sessions for discussions concerning a specific proposal with a business entity where open discussion would “jeopardize the siting, retention, expansion, or upgrading of the business,” was properly invoked to discuss the sale of NKU’s radio stations.

The OAG’s office determined that while specific proposals were discussed in closed session, “the limited record before us is insufficient to find a violation of the Open Meetings Act in discussing the specific proposals for the sale of NKU’s radio stations in closed sessions.”

The Tribune provided a suggested remedy to Board Chair Boehne, a requirement before submitting a request for opinion to the Attorney General’s office, but also as a courtesy to a valued community partner.

It was suggested that the NKU Board of Regents simply schedule another Special Meeting, place the item that was voted on previously regarding the sale of NKU and its assets on the agenda, and take another vote. The Tribune asked the BOR to acknowledge that that there were questions about the propriety of the initial vote, and that the item was going to be addressed again to remove any concerns about its validity.

The Tribune also indicated that if the remedy offered was satisfactory to the Board of Regents, there would be no need to request an opinion from the Attorney General or publish anything regarding this potential violation. The goal has always been to ensure the actions taken at the Special Meeting were in, or were brought into, accordance with Kentucky Revised Statutes.

Gates

The Tribune received the following response from NKU General Counsel Joan Gates:

“The following provides Northern Kentucky University’s (“NKU”) response to your email to Rich Boehne regarding the Special Meeting of our Board of Regents (the “Board”) on February 14, 2017 (the “Meeting”). Amanda Nageleisen spoke with you on February 16th regarding your concerns and provided the university’s position. In that phone call you stated that WNKU should have been an agenda item and requested an official response from the university.” 

The agenda item listed and published in accordance with Kentucky special meeting requirements was “Executive Session.”  Prior to the Board entering Executive Session, the Board Chair properly announced that the Board needed to go into Executive Session pursuant to KRS 61.810(1)(f) in order to discuss a personnel matter and pursuant to KRS 61.810(1)(g) to discuss a specific proposal with a business entity where open discussion would “jeopardize the siting, retention, expansion, or upgrading of the business.”  This was seconded and the Board went into Executive Session.

No final actions were taken by the Board during the Executive Session.  Once the Executive Session concluded, the Board properly announced the session was concluded and the Meeting was open.  Once the Board returned to an open Meeting, the proposals to purchase WNKU and its assets were discussed and ultimately voted upon and unanimously approved by the Board. 

 As such, it is NKU’s position that this Meeting was conducted in accordance with the relevant Kentucky Revised Statutes.

It is my understanding you were not present at the Meeting. Therefore the published minutes will provide you a more complete understanding of the events of this Meeting. As required by KRS 61.835, those minutes will be available immediately following the next meeting of the Board. If you have any further questions about this issue, please direct them to my attention.”

It was the Tribune’s position that this response did not provide a satisfactory explanation, and no resolution, of the suggested violation, prompting the request for opinion from the OAG.

The Tribune’s concerns and desire to seek an immediate resolution of the question go beyond the violation of KRS identified in the OAG’s opinion.

If at any point, for any reason, interested parties were to raise the same concerns that the Tribune has identified at a later date and the Attorney General agreed that a violation had occurred, it could potentially impact the sale of WNKU and its assets. These concerns were expressed to BOR Chair Boehne at the time of the original inquiry.

The Tribune respects the position of Northern Kentucky University and the BOR in this matter and asked for this clarification only to ensure, as quickly as possible, that the business of the Board of Regents was conducted in accordance with Kentucky Revised Statutes.

As a community watchdog, the Tribune considers it part of its responsibility to identify and ask for a clarification on issues of concern. It is not our expectation that we will always be right, but it is our responsibility to ask the question.

We feel fortunate to be able to provide this clarification to the NKU Board of Regents and the Northern Kentucky community in an effort to avoid future potential violations of Kentucky Revised Statutes.

The Tribune would also ask that, in the future, Northern Kentucky University would adhere to the “best practices” identified in the OAG’s opinion in an effort to maintain the high regard with which it is held in the community.

Contact Mark Hansel at mark.hansel@nkytrib.com