Questions raised about legality of private meetings held by University of Kentucky trustees

lblackford@herald-leader.comJune 8, 2014 

  • Major votes taken without discussion

    According to the Herald-Leader archives, members of the University of Kentucky Board of Trustees had no questions or comments when taking the following votes:

    Dec. 13, 2011: The board voted to begin the process of privatizing UK's housing, a $500 million proposal, and to hire consultants to assess UK's debt.

    Oct. 14, 2012: The board voted to approve a contract with Education Realty Trust to build the first phase of privatized housing, the first major outsourcing in UK's history.

    March 19, 2013: The board voted to raise tuition 3 percent, which brought UK's tuition to more than $10,000 a year for the first time in its history.

    May 14, 2013: The board approved the second $100 million phase of its privatized housing project.

    June 11, 2013: The finance committee and the full board approved the university's $2.7 billion annual budget.

    May 9, 2014: The board voted to raise tuition 5 percent. One trustee dissented, and trustee David Hawpe assured the public there had been "deep discussion" during private briefings.

The University of Kentucky Board of Trustees will vote Tuesday on a proposed annual budget of more than $3 billion, but don't expect many questions or much discussion of how the money gets spent. They already will have been briefed extensively on the budget in private meetings that administrators hold with small groups of trustees.

Those behind-the-scenes meetings, however, might violate the Kentucky Open Meetings Act because they appear to be held in an effort to avoid public discussions, according to multiple attorneys familiar with the law.

Kentucky's open meetings law says that "the formation of public policy is public business and shall not be conducted in secret." There are several exceptions to that rule that allow public bodies to discuss business in private, but the law specifically forbids the discussion of public business in a series of small private meetings that collectively involve a quorum of the body.

"What you cannot do is have a series of meetings involving a quorum, at which a discussion of the entire issue is closed to the public," said Louisville attorney Jon Fleischaker, an open meetings expert who advises the Kentucky Press Association. "And while I do not want to comment on the particulars of the university's situation, in general, where staff is meeting with a quorum of the board in a series of planned meetings to discuss an issue specific to its responsibilities and where there is an acknowledgement these meetings occurred, I think that raises serious questions about whether the law may well have been violated."

The law banning a series of small-group meetings, which Fleischaker helped craft, was written to help ensure transparency of government, he said.

"When matters are discussed in a series of meetings in private, there is no transparency," he said.

Board chairman Britt Brockman defended the private briefings, which he said allowed board members to get educated on complex issues while complying with state law.

"It is a responsible way for our board members to ask questions rather than disrupting an administrator with 20 phone calls," he said. "We're very, very aware that these are just informal meetings. No deliberations are had ... . We get time to think about it and digest it.

"I think the board chair and the president are doing everything we can to be as transparent as possible."

Brockman touted the board's strong committee system, where issues routinely are aired in public, he said. (Last year, neither the finance committee nor the full board discussed the university's $2.7 billion budget before voting.)

At public meetings, university administrators often make presentations to the full board or one of its committees, but board members rarely discuss any issues and usually vote unanimously in favor of President Eli Capi louto's proposals.

For example, the board approved a 5 percent tuition increase last month with no public discussion, although members had had "deep discussion" of the issue in previous private briefings, according to trustee David Hawpe, a former editorial director of The Courier-Journal in Louisville.

UK spokesman Jay Blanton later confirmed that a series of private meetings had been held.

"We didn't reach any decisions at that time, but people expressed their views," Hawpe said recently about the budget briefings, each of which was attended by two to three trustees. "I think we ought to improve constantly the degree of transparency that we achieve in doing the university's business and I think that applies now."

Lexington attorney Tom Miller, who has represented the Herald-Leader in lawsuits involving the Open Meetings Act, said the UK board's lack of "any rational discussion" in public about major issues indicated that it probably violated the law by holding its briefing sessions in private.

"If you have had a presentation of relevant information which is necessary in order to vote, it would be subject to the open meetings law," Miller said. "Otherwise, it would be meaningless to have an open meeting law if all you get to do is watch the vote."

It's not clear how long the practice of privately briefing trustees on major issues has been going on at UK, although Blanton said they also occurred during the administration of former President Lee T. Todd Jr.

At the University of Louisville, administrators also hold a pre-budget information session for trustees, but if a quorum of trustees decides to attend, the university notifies the press, spokesman Mark Hebert said.

Debating the law

Blanton contended that the university was meeting the requirements of the state's open meetings law, citing this line in the statute: "Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues."

"As an administration, we must provide the information and context trustees need so that they can do what is an increasingly complex job," Blanton wrote in a statement. "We also know we have a responsibility to the important principles of openness and transparency expected of a public institution. The responsibility to both responsiveness and openness requires a sincere balancing of interests. To that end, we are adhering to the clear requirements of the state's open meetings law."

But Fleischaker said the law was clear that "education" does not include a series of less-than-quorum meetings held to discuss specific issues related to the university behind closed doors.

"The attorney general's opinions are pretty clear on this," he said.

In 2010, the Office of Attorney General, which is charged with interpreting the state's open meetings and open records laws, found that the Butler County Fiscal Court had violated the law when four of its six members met individually with the county sheriff to discuss the budget.

The opinion, which carries the force of law unless contested in court, said the open meetings law "requires that any meeting at which public business is discussed or action is taken must be open to the public, and that we attach significance to the use of the disjunctive particle 'or,' rather than the conjunction 'and.'

"Given the fact that the fiscal court acknowledged that these meetings occurred, that the members attending collectively constituted a quorum, and that they chose to meet one on one, instead of in a group, to avoid the requirement of a public meeting, we find that the Butler County Fiscal Court's actions violated" the law.

In a similar opinion in 2013, the Office of Attorney General rejected an argument by the Lancaster City Council that it didn't violate the law when holding a series of less-than-quorum meetings to discuss contract negotiations with a water company. The council had argued that its members simply were educating themselves.

Education of decision makers should not be used as a defense "lest 'this narrow exemption ... swallow the express rule'" to discuss policy publicly, the attorney general's office ruled.

'Feeding them information'

Most UK trustees contacted by the Herald-Leader did not return calls or declined to comment for this story.

Faculty trustee John Wilson praised Capilouto's frequent presence at university council meetings, where he presents information to faculty but said, "I think it's important for trustees to have an open discussion of the issues."

Fellow faculty trustee Irina Voro is often the only member to dispute the administration at board meetings. She said she attended some of the briefings.

"In my view, the practical purpose of these sessions is to lead trustees to vote a certain way by feeding them information carefully designed to support the pre-set agenda of the president and his administration," she said in a statement.

But trustee Jim Stuckert, who chairs the finance committee, said there were extensive presentations and discussions at committee meetings, which take place the day before and the morning of full board meetings.

"With no committee meetings and no briefings, those board meetings would last for a day and a half," he said. "Nobody would have any time to think through any issues they may or may not have."

Stuckert said the budget was merely the final document encompassing many issues that already have been studied and discussed.

"If you're familiar with it, then there's not any big surprise," he said.

For example, tuition is going up 5 percent, so it probably will increase 3 percent next year because the state has limited the university to a maximum increase of 8 percent over two years.

"What is a board member or committee member supposed to ask about tuition?" he said.

Linda Blackford: (859) 231-1359.Twitter: @lbblackford.

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