EKU Board of Regents violated law when it discussed job cuts in secret, AG says

Here lies higher education. Students hold funeral in Capitol.

EKU students held a mock funeral to protest budget cuts to Kentucky higher education on Monday, April 23, 2018.
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EKU students held a mock funeral to protest budget cuts to Kentucky higher education on Monday, April 23, 2018.

The Eastern Kentucky University Board of Regents violated the state open meetings act when it met behind behind closed doors for more than five hours, Attorney General Andy Beshear said.

The student newspaper, the Eastern Progress, filed an appeal with Beshear's office after the meeting.

The March 19 meeting was held before EKU officials announced how they would deal with a $25 million budget cut, specifically by cutting about 120 jobs and programs. Because individual people would lose their jobs, the regents used two exemptions to the open meetings law, one that allows closed sessions for the discipline or dismissal of an employee, or for proposed or pending legislation. Board attorney Dana Fohl argued that litigation was "reasonably imminent depending on what positions might ultimately be eliminated."

But Beshear's office found that discussing budget cuts was "only tangentially related" to individual personnel matters. The open meetings law states "the formation of public policy is public business and shall not be conducted in secret," and exemptions shall be "strictly construed.," the opinion says. "The public had a right to attend the discussions regarding the impact of the recommendations on the University."

Further, the letter says, "the mere threat than an employee or faculty member may bring suit against the board for a personnel action does not justify the use of the exception," in the law.

In addition Beshear's office found that non-board employees were present during the entire closed session, which was more time than was necessary to give their expertise.

Board Chairman Craig Turner said the board "takes great exception with the ruling, and will consider all the options available to it under the law, including appeal."

In his statement Turner said general budget matters were not discussed in the meeting.

"The board’s sole intention for the closed session was to maintain the privacy of the identified individuals impacted until the list of position eliminations was final and the terminations had been carried out in a more individualized, appropriate and considerate manner," he said. "Even in these times of austere budgets and difficult cuts, we will continue to hold the privacy of our employees as a top priority. Those impacted are being eliminated through no fault of their own, and have played a key role in making EKU the quality institution that it is to both learn and thrive as a student, and to work as an employee. "

Under state law, If the board does appeal, it will have to sue the Eastern Progress to move the matter into circult court.

Attorney Amye Bensenhaver, an open records and meetings expert who used to work for the Attorney General's office, helped student journalist Jennifer Perkins of the Eastern Progress with her appeal.

"I'm very pleased," Bensenhaver said. "The law is so clear on this issue — having to eliminate programs is unrelated to an employee's conduct, so there's no reason to go into closed session. "

Perkins was not immediately available for comment.

On April 6, the Board of Regents met in open session to announce they would cut 153 positions, cut numerous programs and close their regional Danville campus.