Add this to the growing list of news reports in the past few weeks that illustrate how proposed revision of the Kentucky Open Records Act in HB 509 will encourage the abuse it is intended to eliminate.
WPSD Local6's Taylor Bryan reports on accusations of illegal "serial" less than quorum meetings of board members, conducted on ostensibly private text messages, that come in the wake of the Marshall County Board of Education's decision about Superintendent Steve Miracle's continued employment.
"According to the Kentucky School Boards Association," WPSD reports, "school board members have a limited role in personnel matters, and are prohibited from influencing the hiring of district employees. But in February, after the school board elected not to renew Miracle's contract, he claimed
members of the board had been trying to sway his decisions regarding personnel.
"'They wanted me to make personnel decisions as they wanted them. Take action against people that maybe they didn't like or give benefits to people that they like,' Miracle told reporters at the time.
"The board responded with a statement calling the claim 'demonstrably untrue.' Through an open records request, WPSD has since obtained documents that support Miracle's initial claim.
"Documents received by WPSD show board members repeatedly expressed their frustrations with McCoy and her leadership style in a group chat that included each member and Miracle."
If those text messages were exchanged on board members' private cellphones, and not shared with the user of a publicly issued cellphone, they would be inaccessible to the public under proposed amendments to the open records law that restrict public agency search and production of records in response to an open records request to those "stored or contained in "[a]n electronic device or system that is the property of, or under the control of, the public agency; or [a]n email account that is an agency-furnished or agency-designated email account."
https://apps.legislature.ky.gov/record/24rs/hb509.html
The violation of the open meetings law would go undetected.
And because the mechanism for detection that currently exists in the open records law -- requiring members to treat the texts as public records, retain the texts as such, and produce the text if asked to do so by the school district's custodian of records in response to an open records request -- business could and would be secretly conducted on private devices and accounts with impunity.
And a violation of the open meetings law it would likely be under KRS 61.810(2) which prohibits "[a]ny series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of [the open meetings law]."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=52570
The ostensibly private texts among board members, in this case, were likely retrieved and produced by Superintendent Miracle -- with whom the board members shared the texts -- in response to WPSD's open records request.
Under HB 509, the texts would fall between the legal cracks, and never see the light of day, unless voluntarily produced -- an unlikely admission against interest.
Ours is not to assess the legality of school board members' apparent interference in personnel matters. It is, instead, ours to underscore the vast potential for illegal serial less than quorum meetings -- something to which lawmakers are willing to turn a blind eye in the name of the board members' electronic personal privacy. Here are several recent examples:
• Louisville Public Media sues The Jefferson County Public Schools for electronic communications exchanged during the first day school bus debacle;
https://www.lpm.org/news/2024-03-19/lpm-files-lawsuit-against-jcps-seek…
• Nelson County Schools' parent group sues Nelson County Schools for illegal secret meetings by text and email to discuss their superintendent's future and a faculties plan;
https://www.wlky.com/article/nelson-county-parents-demand-transparency-…
• Walton, Kentucky mayor resigns following a lawsuit exposing electronic communications that reveal his animus toward a local businessman and city credit card irregularities.
https://local12.com/news/investigates/mayor-intent-resign-resignation-c…
What further proof is needed that public employees and officials must remain accountable through the communications they exchange on public •and private• accounts and devices?
Why ignore decades of legal authority in Kentucky recognizing that it is the nature and content of a record, not the place where it is kept, that determines whether it is subject to the open records law?
https://law.justia.com/cases/kentucky/court-of-appeals/1999/1998-ca-001…
HB 509 is moving.
On March 25, it was "taken from State & Local Government (S)," given its first reading, and "returned to State & Local Government (S)." The last action on the bill occurred on March 14, when it was assigned to that committee.
Because a large number of bills are assigned to the State and Local Government Committee, the meeting agenda will be a lengthy one if it is called during tomorrow's regular committee meeting -- or even several special meetings. There will be little time for real discussion --nothing like the seven hours of testimony lawmakers heard last year in Arkansas, or this year in New Jersey, that prompted them to slam the brake on bad public records legislation.
https://kyopengov.org/blog/hope-defeating-hb-509-and-two-lawsuits-demon…
We will know a great deal more if HB 509 receives a second reading today or is scheduled for a committee meeting tomorrow. In either case, it will be clear that lawmakers intend to move this ill-conceived anti-transparency measure at the eleventh hour in the face of the events described above and at an immeasurable cost to the public's right to know.
