Attorney General finds EKU Board in violation of KY Open Meetings Act
By Jennifer K. Perkins
UPDATE May 3: The Commonwealth of Kentucky Office of the Attorney General issued an opinion May 3 stating the Eastern Kentucky University Board of Regents violated the Open Meetings Act in discussing multiple potential layoffs in a session closed to the public.
The attorney general’s opinion stated,
“Meeting of the Eastern Kentucky University Board of Regents violated the Open Meetings Act in discussing multiple potential layoffs in a session closed to the public under KRS 61.810(1)(c) and KRS 61.810(f). The Board violated the Act when it allowed non-members to remain in the closed session beyond the time in which their attendance was necessary.”
Regarding the board’s discussion in the closed session, the attorney general stated, “The general nature of the report (the Budget Advisory Committee Draft Recommendations: Supplementary Tables) cannot be changed by merely supplementing it with individual names after the fact.”
The attorney general addressed the potential litigation argument made by the board and Dana Fohl, university counsel, by stating, “The mere threat that an employee or faculty member may bring suit against the Board for a personnel action does not justify the use of the exception.”
The opinion also stated, “The public had a right to attend the discussions regarding the impact of the recommendations on the University.”
To read the full document view the timeline or visit https://drive.google.com/file/d/1Fp3WYSO3E4y_oHi9nJ1Z0_LAyfxGJph3/view?usp=sharing.
UPDATE May 1: The Eastern Progress received a digital copy of the Budget Advisory Committee Draft Recommendations: Supplementary Tables on April 30, which a faculty member had been given as a result of an open records request filed on April 24.
The document was shared with The Eastern Progress by a different faculty member. Both hard copies as well as digital copies have circulated amongst faculty members at the university.
The version received from the open records request was a PDF file that included redactions. The redactions, however, did not appear if the document was opened on a mobile device.
The document, as it appears on mobile devices, is embedded into the timeline above. The document includes information such as when the year of impact for the cuts, which college the cut came from, the position being cut without names, and the cost savings from the cut.
A letter from Dana Fohl, university counsel, was sent to the attorney general’s office on April 24 in response to the appeal filed by The Eastern Progress with the attorney general’s office. The letter to the attorney general explained the Board of Regents’ position in the matter.
In the letter sent to the attorney general’s office, Fohl wrote, “While in closed session, the Board was presented with a draft, preliminary document which represented the Budget Advisory Committee’s initial recommendations for staff and faculty position reductions. The list contained the employee names and position titles of all positions that had been identified, based upon set goals and criteria, by the strategic budget review process for elimination.”
Fohl also wrote, “Those meetings [meetings with employees who could potentially lose their jobs] were individualized and personal, as these selected employees deserved to be treated with dignity and respect, particularly as their terminations were not the result of any wrongdoing on their behalf.”
The employees referenced by Fohl in the statement above had not been informed of their potential termination prior to the closed session meeting by the Board of Regents on March 19.
“None of these individuals knew they were on the list or that they could even possibly be impacted,” Fohl wrote in her response to the attorney general’s office. “Further, the list was not final.”
The Budget Advisory Committee Draft Recommendations: Supplementary Tables is not the complete document reviewed by the Board of Regents.
Fohl’s letter stated, “While the Budget Advisory Committee’s work only focused on positions (and they were not privy to employee names in positions), when this information was conveyed to the Board, the individuals holding each of these positions were identified.”
The Eastern Progress expects to receive the results from the open meetings complaint on May 2.
After the Board of Regents denied allegations of violating the Kentucky Open Meetings Act during its closed session on March 19, The Eastern Progress submitted an appeal to the Kentucky Attorney General’s office on April 17.
During a special called meeting on March 19, the Board of Regents spent five hours in closed session.
A closed session occurs when a public agency goes into a private meeting to discuss specific personnel issues, the sale of public property that could give buyers an unfair advantage, among others.
Board of Regents chair Craig Turner cited exceptions to the open meetings act KRS 61.810(c) and (f) in a motion that contained the phrase “dismissal of an individual employee” in order to enter the closed session. After five hours, the Board exited closed session with a brief statement by Regent Lewis Diaz. His statement, however, included the phrase “individual employees.”
The distinction between the two phrases led The Eastern Progress to consult with Attorney Jon Fleischaker.
Fleischaker has more than 40 years of experience in media and First Amendment law, according to the Kaplan Johnson Abate & Bird LLP law firm. He is known for helping draft the Kentucky Open Meetings Act and Open Records Act in 1974 and 1976, respectively.
Fleischaker helped The Eastern Progress draft a letter of complaint to the Board of Regents, which was filed on April 3 by Jennifer K. Perkins on behalf of The Eastern Progress.
The letter included a brief summary of the background information from the meeting on March 19.
Background information included the motions used to enter and exit closed session and the admission of individuals, such as Barry Poynter, the vice president of finance and administration; Kristi Middleton, chief external affairs officer; David McFaddin, vice president of government relations; and Tanlee Taulbee Wasson, assistant vice president for institutional effectiveness, to the closed session meeting for the last three hours and that no immediate pending litigation could be located that involved Eastern Kentucky University.
After providing the background information, the letter included case law that supported the allegations of violating the open meetings law. The case law included 16-OMD-109; Floyd Cnty. Bd. of Educ. v Ratliff, 955 S.W.2d 921, 924 (Ky. 1997); Jefferson Cnty. Bd. of Ed. v. Courier-Journal, 551 S.W.2d 25, 28 (Ky. Ct. App. 1977); 12-OMD-093; OAG 83–415; 03-OMD-089 p.13; Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012); OAG 92–146; 13-OMD-006; 17-OMD-158; OAG 77–560, p. 2 quoted in 00-OMD-219 p. 5.
The case law explains that the attorney general has already ruled that the KRS 61.810 (f) exception can only be used in the case of an individual employee. It cannot be used to discuss the appointment, discipline or dismissal of a group of employees for reasons such as financial cuts to university funding.
The letter also used case law to explain why selective admission to such a meeting was an issue. Members of the finance and administration office were invited into the meeting, as well as members of communication and brand management. Reporters from The Eastern Progress and The Richmond Register were not allowed to enter the meeting until the closed session had ended.
The letter ended with three recommended remedies to the issue:
The Board acknowledge the violations,
It release any unredacted or unedited records or recordings from the meeting,
The Board publicly commit to a future course of conduct consistent with all requirements of the Open Meetings Act.
After the letter was filed to Turner and Dana Fohl, university counsel and secretary to the Board of Regents, recipients had three business days to respond.
On April 6, The Eastern Progress received a response letter from Turner.
“I’m disappointed that you felt like we should make these decisions quicker,” Turner said in his letter. “Approximately 120 individual employees’ terminations were discussed as well as litigation.”
Turner addressed the closed meeting by restating the KRS 61.810 (1) © (f) exceptions and explaining that no action had been taken upon the Board’s return to open session. He briefly addressed the April 6 meeting, although it was not mentioned in the complaint.
Turner denied any allegations of open meetings violations.
The Eastern Progress has taken the next step and appealed to the Kentucky Attorney General’s Office. Attorney General Andy Beshear has 10 business days to respond. After the decision is handed down, either party will have 30 days to appeal to the Madison County Circuit Court or the decision will have the force and effect of law, according to “Protecting Your Right To Know: The Kentucky Open Records and Open Meetings Acts.”
