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Amye Bensenhaver: Legislators, public abandoned any pretense of compliance with open meetings

Amidst the usual controversies that attend the opening days of a legislative session, the first week of the 2019 Kentucky General Assembly raised a singular question unrelated to the weighty business at hand: When did the legislature abandon any pretense of compliance with the open meetings laws and when did Kentuckians abandon any expectation of compliance?

As the week began, we learned of an emergency regulation imposing new restrictions on the public’s right to enter the State Capitol and Capitol Annex and its conduct once inside.

Photos soon appeared in newspapers of posted notices establishing various “conditions on attendance,” including a restriction on the use of recording devices. Photos later spread across Twitter of a huddled meeting at the front of the House chamber attended by members of a legislative committee, their backs to those in attendance, as the media strained to listen. At week’s end, reporters tweeted photos of members of the public shut out of an overcrowded education committee meeting.

Questions were raised concerning the propriety of the legislature’s actions this week, but no known legal challenges were filed.

This does not bode well for the 2019 session.

Because “the formation of public policy is public business,” any other public agency that engaged in such conduct in Kentucky, whether state or local, would expose itself to a successful legal challenge under Kentucky’s open meetings law.

Not so for the Kentucky General Assembly which makes the rules other agencies must live by but refuses to abide by itself.

In 2018, the Bluegrass Institute’s Center for Open Government prevailed in an open meetings challenge to a closed meeting of the House – speciously described as a majority caucus meeting to which the minority caucus was invited — to discuss a newly released pension report outside the “glare” of public scrutiny. Only one member, former Representative Jim Wayne (D-Louisville), refused to attend citing the public’s rights under the open meetings law.

No one argued, then or now, that the open meetings law is inapplicable to the General Assembly. Yet formal legal challenges to its noncompliance have been few and far between.

The open meetings law mandates that “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.” It broadly defines the term “meeting” to include “all gathering of every kind” and the term “public agency” to include “committees. . .established, created and controlled by a ‘public agency.’”

The law also provides that “[n]o condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency” and that “all agencies shall provide meeting room conditions, including adequate space, seating, and acoustics, which insofar as is feasible allow effective public observation of the public meetings,” meaning the ability to see and hear.

This week, our elected representatives violated the open meetings law when they:

 imposed conditions on attendance other than those required for the maintenance of order, including but certainly not limited to, a blanket restriction on the use of recording devices;

 conducted an unnoticed committee meetings at the front of the House chamber that did not permit effective public observation; and

 failed to ensure adequate space, seating, and acoustics for an overflow crowd at a committee meeting by selecting a larger meeting room or providing an auxiliary room with video streaming.

And the legislative session is only a week old.

Kentucky’s courts have recognized that “[t]he failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good” and that the right of the public to be informed “transcends any loss of efficiency.”

We should remind the General Assembly of the preamble to the open meetings law, declaring that “[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know.” We should again “insist on remaining informed so [we] may retain control over the instruments [we] have created.”

Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. She has written more than 2000 legal opinions related to the state’s open records and open meetings laws. If you have questions or comments about Kentucky’s open records laws, please email Ms. Bensenhaver at missbhaver@gmail.com/em>

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