In the 42-year history of the Kentucky Open Meetings Act, there may never have been a more remarkable ruling than the one issued last week by Attorney General Andy Beshear.
That’s saying something, since the open-meetings law and the state Open Records Act, which turned 40 on Sunday, are fraught with many opinions – of the attorney general, whose rulings in such matters have the force of law unless overturned by a court; and of the courts, which seem likely to settle a series of battles between Democrat Beshear and Republican Gov. Matt Bevin.
This column is mainly about those laws, but first, a bit about Beshear’s opinion.
He wrote that Bevin’s chief of staff and personnel secretary violated the law by threatening Tommy Elliott, whom Bevin had “purportedly” removed from the Kentucky Retirement Systems board, which Elliott chaired, with arrest if he attempted to participate in the board’s May 19 meeting.
“Conditioning Elliott’s attendance on not participating as a board member, or face arrest if he did, and having law enforcement officers present and standing near him during the meeting,” violated the open-meetings law, which says “No condition other than those required for the maintenance of order shall apply” to anyone at a meeting of a public agency, Beshear said.
He added that the threat and the police presence “created an atmosphere that chilled or confined the public’s right to freely attend the public meeting. The condition also chilled or confined the public’s concurrent right to freely express their approval or disapproval of any action the Board may have taken.”
Beshear asked, “Would a member of the public feel free to attend a public meeting of a public agency where multiple law enforcement officers are standing by the doors to the room where the meeting is held, and a Board member has been informed that he faces arrest if he attempts to participate in the meeting?” He answered, “This office does not believe so.”
That might be a stretch. It is certainly a matter of opinion, as is so much in the laws on open meetings and open records. No law can anticipate every situation, especially one governing the conduct of public officials, the wide range of records they keep and the topics they discuss.
The key in writing such laws is to establish strong, clear principles that attorneys general and judges can apply to individual cases, and leave little room for mischief. And more than most states, Kentucky’s open-government advocates and the legislature have done so. That’s especially true of the Open Records Act, which deals with a more easily regulated and arguably more important facet of government – and which became law 40 years ago Sunday.
“It has withstood the test of time as an indispensable tool for a variety of individuals and interest groups seeking to hold public officials accountable,” wrote retired editor John Nelson of Danville, a former president of the Kentucky Press Association, in a story KPA commissioned to celebrate the law’s anniversary.
Before the law “changed everything,” Nelson wrote, “local governments could easily hide their spending, state agencies could bury their mistakes, elected and appointed officials could more easily abuse their powers.” And, in my favorite part, the law says exceptions “shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.”
That’s a pointed reminder that public offices and their records exist to serve the public, not the interests of public officials or employees.
And we need to remember that while newspapers (particularly The Courier-Journal of Louisville and its chief attorney, Jon Fleischaker) led the fight to pass the law and improve it in 1992, and remain its primary defenders, the Open Records Act is more often used by non-journalists.
That’s especially important to keep in mind at a time when changes in the news business mean there are fewer journalists, and fewer news organizations willing to cough up the money to take violators to court.
And the violations continue.
There are too many “executive sessions” that go beyond the exception cited for closing the meeting, such as “personnel,” which the law limits to talk that “might lead to the appointment, discipline, or dismissal of an individual employee, member, or student” but too often gets into general payroll issues – even though the law says not to do that.
One of the more common violations is the “walking quorum,” in which members of a public agency agree on a course of action in a sequence of gatherings short of a quorum. They do that with texts and emails, too, but they need to remember that those messages can be public records.
The open-government laws aren’t perfect. The records law is superseded by statutes like the one that make public pensions private, and there’s a gap between the meetings and records laws: Nothing in the law necessarily makes public a document that members of a public agency discuss at a public meeting.
And there are abuses. When a newspaper in Westchester County, New York, got the list of everyone in the county who had a gun permit, it ran a detailed map of their addresses – making the information too readily available to people who might misuse it. But we learn from our mistakes, and hope that citizens remember what Alan Barth, an editorial writer at The Washington Post, liked to say:
“If you want a watchdog to warn you of intruders, you must put up with a certain amount of mistaken barking. … But if you muzzle and leash him, and teach him decorum, you will find that he doesn’t do the job for which you got him in the first place. Some extraneous barking is the price you must pay for his service as a watchdog. A free press is the watchdog of a free society.”
Open-government laws facilitate that watchdog role, not just for journalists, but for citizens, upon whom technology has recently bestowed the power of easy, mass publication. Every American has always had the First Amendment right to commit journalism, and now more are able to do it. These laws can help all of us hold public officials accountable.
Al Cross is director of the Institute for Rural Journalism and Community Issues, headquartered at the University of Kentucky in Lexington.