The Kentucky Attorney General's recent rejection of the allegation of illegal serial less than quorum meetings by the Frankfort City Commission — in an open meetings appeal filed by The State Journal — exposes a fundamental weakness in the law.

It also exposes the attorney general's inclination to avoid a finding of agency violation of the law.

In August, the commission conducted a regular public meeting. The agenda included a closed session discussIon of "appointment, discipline, or dismissal of an employee."

Since the commission's authority to fire is restricted to the city manager, then current city manager Keith Parker questioned a commissioner about the agenda item.

The commissioner advised Parker that the mayor had the needed three votes to dismiss him. The commissioner later retreated from his statement, suggesting that it was an inference or that he may never had said it at all.

The State Journal learned of the conversation between the commissioner and Parker and filed an open meetings complaint with the city commission.

The commission did not deny that three members secretly discussed Parker's termination in advance of the public meeting.

(One commissioner, it should be noted, was excluded from the discussions.)

Instead the commission denied that its purpose was to circumvent the requirements of the open meetings law. They were "educating" each other about Parker's acts and omissions.

Following a closed session that has itself been challenged under the open meetings law, and with no public discussion, Parker was dismissed by a vote of 3-2.

This scenario is all too familiar to observers of public meetings — a matter of public importance, great or small, is voted on in open session with little or no public discussion. The formation of public policy — "the public's business" by law — is decided outside of a public meeting in a single secret meeting of a quorum of the agency's members or a series of secret less than quorum meetings by members collectively constituting a quorum.

It is a recurring problem, so common that in 1992 lawmakers sought to "cure" it by enacting a statute prohibiting the conduct.

The statute prohibits any series of less than quorum meetings to discuss public business or take action "where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency" This applies to in-person meetings as well as meetings by telephone, email, text message, etc.

At this point, the statutory language becomes squishy. The 1992 prohibition on serial meetings only applies "where the meetings are held for the purpose of avoiding the requirements of [the open meetings laws]." Further, the 1992 statute does not "prohibit discussions between individual members where the purpose of the discussions is to educate the members."

To no one's surprise, virtually every public agency confronted with a claimed open meetings violation based on secret serial less than quorum meetings responds that its purpose was not to circumvent the open meetings law and/or that its members were merely educating each other.

And so it was with the members of the Frankfort City Commission who are alleged to have violated the 1992 statute prohibiting serial less than quorum meetings.

Despite the uncontested evidence of serial less than quorum meetings to line up the needed votes to dismiss the city manager, and with very little analysis, the attorney general concluded that although the commissioners and mayor conducted serial less than quorum meetings to discuss public business, "to violate the Act, a series of less than quorum meetings must be held 'for the purpose' of avoiding the obligations of the Act. In essence, KRS 61.810(2) contains a mens rea ['guilty mind'] requirement."

The attorney general found "insufficient evidence to conclude that the [commission] members intended to violate the Act."

"A deeply disappointing but not altogether unexpected outcome whose net effect is to give a green light to officials who engage in illegal secret discussion of the people's business but self-servingly deny that their purpose was to avoid open meetings requirements.

Short of an open admission of culpability by agency officials — which is exceedingly rare in the 28 that the statute has been on the books — how does the public establish that agency officials acted with a "guilty mind" when they discussed public business in prohibited serial less than quorum meetings?

This is not an easy thing to do when public officials need only issue a broad denial to refute the claim — however damning their admitted course of conduct.

In truth, lawmakers took a great step forward with the 1992 amendment to the open meetings law but simultaneously took two steps back.

Had lawmakers left the then new law at "Any series of less than quorum meetings, where the members attending one (1) or more of the meetings collectively constitute at least a quorum of the members of the public agency . . . shall be subject to the requirements of [the open meetings law]," they would have achieved the desired goal and meaningfully advanced the public's right to know.

But they lost their nerve, buckled, and added "where the meetings are held for the purpose of avoiding the requirements of [the open meetings law]" and "nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues," thereby completely undermining the prohibition.

Lawmakers got cold feet in 1992 and gave public officials two easy and utterly self-serving defenses.

So much for meaningful enforcement of the 1992 open meetings amendment prohibiting serial less than quorum meetings.

So much for the dying notion that "statutes enacted for the public benefit must be construed most favorably to the public."