The Sentinel Echo reports on some not so sage legal advice from the new Laurel County Board of Education attorney in a discussion of a recently filed open meetings complaint at Monday night's board meeting.
https://www.sentinel-echo.com/news/former-lc-board-attorney-files-open-…
The open meetings complaint alleges that three board members -- a quorum of the five member board -- met to discuss removing the board's attorney and hiring a new attorney, Conrad Cessna.
The Sentinel Echo correctly notes that a secret meeting of a quorum of the school board members -- meaning a meeting that is not preceded by proper legal notice and from which the public is excluded -- "is a violation of the Open Meetings Act."
In his remarks, Cessna cited "factual inaccuracies" in the complaint and offered the legal opinion that:
"he did not see where the complaint had any valid evidence of violations of the Open Meetings Act. Cessna said that there are exclusions in that law that allow members to discuss business among themselves -- as long as a majority of members are not present."
Cessna may be disputing the presence of a quorum at the alleged secret meeting. Or he may erroneously believe the statutory defenses to a claim of an open meetings violation based on serial less than quorum meetings — that the serial meetings were not held for the purpose of avoiding the open meetings law and/or that the members participating in the serial less than quorum meetings were educating each other on specific issues — can also be invoked to defend a secret meeting of a quorum of the public agency members (as the complaint alleges).
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=52570
We cannot speak to alleged “factual inaccuracies” to which Cessna referred, but his analysis is otherwise legally incorrect. If proven, there are no defenses to a secret meeting of a quorum of the members of a public agency at which public business is discussed or action is taken.
“The Act prohibits a quorum from discussing public business in private or meeting in number less than a quorum for the express purpose of avoiding the open meeting requirement of the Act. KRS § 61.810(2).”
https://caselaw.findlaw.com/ky-supreme-court/1092479.html
Cessna conceded that the board's failure to respond to the open meetings complaint could be appealed to the Kentucky Office of the Attorney General but -- the Sentinel Echo continues -- but noted "there is little the Attorney General can do even if he declares that a violation occurred.
"'Even if you say you violated the Open Meetings Act, the Attorney General can't compel you to change any actions. Second, he cannot impose any monetary penalties. Any action the Attorney General takes (on the decision) has to be filed in circuit court.'"
This shocking level of disrespect for the decades old statutory role of the Office of the Attorney General in adjudicating open meetings complaints is equaled by a correspondingly shocking level of disrespect for the open meetings law. Unless he is unconcerned about expending the board’s resources on losing litigation, he may want to reconsider these statements.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23054
Cessna will serve his new client far better by developing an understanding of the open meetings laws, and the policies that inform them, by promoting compliance with those laws and policies, and by remembering that the impetus for public officials’ compliance with the open meetings (and open records law) is recognition of the public’s right to know and responsible service to the constituents who elected the officials -- not the threat of penalties that can be imposed.
And regardless of who is authorized to impose those penalties, they include the voiding of an employment contract preceded by an illegal secret meeting of a quorum of the public agency's members at which that employment is discussed.
