Opinion – Amye Bensenhaver: WKU open meetings controversy easily resolved — read statute

In the midst of an open meetings controversy at Western Kentucky University involving an illegal series of less than quorum meetings of its regents to discuss the budget, we learn that the university has requested an advisory opinion from the attorney general on the legality of its evasion of the open meetings law.

Past attorneys general would have wisely declined a request for an advisory opinion on an issue that their office might shortly be called upon to adjudicate in an open meetings appeal.

Amye Bensenhaver

The single departure from this policy in my 25-year career as an assistant attorney general attorney — a request from the University of Kentucky for an advisory opinion regarding the application of the open meetings law to meetings of the University Senate, faculties of colleges, and faculties of departments — has had serious consequences (notwithstanding multiple caveats in the advisory opinion that the “opinion is not an open meetings decision and consequently does not carry the force of law. Nor does this opinion necessarily represent the direction that subsequent open meetings decisions will take”).

See, e.g., “Beshear’s open meetings opinion a blow to transparency at universities” and also here.

Courts do not, in general, indicate in advance how they will rule on a issue not yet before them. Nor should the Kentucky Attorney General when — as in open records and open meetings disputes — he acts in a quasi-judicial capacity.

The attorney general should send WKU officials packing. WKU, and public agencies generally, enjoy access to the legal minds of in-house and contract attorneys. They are amply, if not ably, equipped with hired counsel to whom they provide handsome compensation.

They should read the statute, and the authorities construing it, and advise accordingly.

And, when in doubt, err on the side of openness. In this case, advising against a series of less than quorum meetings which the open meetings law prohibits. See here (Subsection(2))

Seeking a “get out of jail free card” from the attorney general is at best, feckless, and at worst, duplicitous.

The attorney general can only compound this gaffe by issuing the requested advisory opinion.

It remains to be seen what he will, in fact, do.

Meanwhile, WKU’s newspaper should file an open meetings complaint with the presiding officer of the Board of Regents. Should the board issue a denial (in three business days), the newspaper can appeal to the attorney general and, within ten days, receive an open meetings decision that is binding on the parties if not appealed to circuit court.

The statute at issue, KRS 61.810(2), is a troublesome one. But the fact that WKU is seeking an administrative dispensation from the attorney general suggests the seriousness of the issue.

See, Louisville mayor, Metro Council held secret calls on pandemic, Breonna Taylor protests and also here.

An open records appeal and resulting decision, rather than some gutless request for retroactive approval, is what state law governing the open meetings law dictates.

Amye Bensenhaver is a retired Kentucky assistant attorney general who wrote open records and open meetings decisions for 25 years. She is co-founder and co-director of the Kentucky Open Government Coalition.

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