Op-Ed

Higher-ed officials may violate open-meetings law

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A recently announced symposium sponsored by the Council on Postsecondary Education, in partnership with Gov. Matt Bevin, raises significant open meetings issues.

According to the agenda, the invitation-only symposium will be held at the Louisville Marriott East on Dec.18. Bevin will make opening remarks at 9 am, following a “networking breakfast.” The keynote speaker, Michael Crow, president of Arizona State University, will then discuss “The Role of Postsecondary Education in the 21st Century.”

At 10:45 a.m., invitees will “break out into one of four sessions to allow for opportunities to weigh in, provide feedback, and further discuss strategies that Kentucky’s postsecondary education institutions may be able to implement.” At noon, they will attend a luncheon emceed by CPE President Aaron Thompson. The governor will again address the assembly.

In response to inquiries from faculty members whose request to attend was denied, CPE advised that “due to the size of the venue and the cost to put on the event and provide meals for the invitees, the invitation was limited to each public campus’s president, board members, and up to 2 staff members chosen by the president.”

Perhaps in considering locations for the symposium, CPE should have “evaluate[ed] space requirements, seating capacity, and acoustics,” as required by the open meetings law, based on the anticipated level of public interest — rather than the number of invitees.

The members of the governing bodies of Kentucky’s scandal-plagued universities can ill afford to participate in closed-door discussions of strategies for their universities’ future.

In a period marked by nonpublic discussions leading to layoffs of tenured professors, legal battles to avoid release of records relating to sexual harassment complaints leveled by students, and the settlement of a civil rights lawsuit filed by a dismissed faculty member for his criticism of the Medicaid rollback, described by the court as “the epic story of academic intrigue,” their participation in an event that perpetuates this culture of university secrecy is, at best, unwise.

It is, at worst, illegal.

Crow’s comments and the governor’s luncheon address will be livestreamed. This is commendable. It is not, however, equivalent to physical presence for which the open meetings law expresses a clear preference.

Further inquiries confirm that CPE does not view the symposium as a public meeting, subject to the open meetings law, notwithstanding the presence of a quorum of the members of the governing boards of several public agencies, including CPE. It is not, CPE maintains, “a formal meeting of the CPE ... due to the event’s general content and structure.”

Nevertheless, CPE indicates that it will provide proper notice to fulfill open-meetings obligations and that the media will be admitted. Those not invited, including faculty, students, and the general public, will be denied access.

However well-intended, the value of statutory public notice of an invitation-only meeting is questionable.

The open-meetings law mandates that all meetings of a quorum of the members of a public agency at which public business is discussed or action is taken must be open to the public. The meeting need not be “formal,” since the term is broadly defined as “all gatherings,” including “informational or casual” gatherings, regardless of where they are held.

Kentucky’s courts and attorney general have recognized that a quorum of the members of an agency can attend a conference or symposium at the invitation of an outside sponsor without violating the open meetings law as long as the members listen and learn but do not discuss the business of the agency they serve.

If they discuss agency business, the members violate the open meetings law..

Given the presence of a quorum of the members of several public university boards and CPE, the focus of the symposium, and the time allocated for participants to network and discuss “strategies that Kentucky’s postsecondary education institution may be able to implement,” the closed meeting may trigger the requirements of the open-meetings law.

If, in fact, the symposium is subject to the open meetings law, the decision to admit the media but exclude faculty members, students, and the public raises the issue of selective admission. A public meeting that is open to one must be open to all.

Even if the symposium is ultimately deemed to fall outside the scope of the open meetings law, the optics are, quite frankly, lousy. And, for good or ill, optics drive public opinion.

Amye Bensenhaver is an attorney who served for 25 years in Kentucky’s Office of the Attorney General where she specialized in open records and meetings cases.

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