The Kentucky Board of Education, as it was constituted before Governor Andy Beshear issued an order removing its members on December 10, began its existence under the shadow of an open meetings violation and may end its existence under the shadow of an open meetings violation.
At 4:20 pm, WDRB's Kevin Wheatley tweeted that ten members of the Kentucky Board of Education, removed by Governor Andy Beshear in an executive order issued earlier in the day, would file suit to "immediately restrain and permanently enjoin" the new board members, appointed by Gov. Beshear, from meeting.
The plaintiffs in the lawsuit are identified as "current members of the Kentucky Board of Education ('the Board')."
Reports indicate that the members retained Louisville attorney Bart Greenwall to represent them and that he was expected to electronically file the suit in Franklin Circuit Court on Tuesday evening.
There was no indication that the board publicly voted to sue.
The open meetings law is clear that "all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times" and that "No final action may be taken at a closed session."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23045
"Action taken" is defined as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23043
The open meetings law "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 [law]."
https://caselaw.findlaw.com/ky-supreme-court/1092479.html
But board members quickly defended the lawsuit as one brought by the members individually, for which each member would bear his or her own legal expense, and not a board decision/action.
If so, the members might persuade the attorney general or the courts that their discussion of a lawsuit challenging their removal did not constitute discussion of "public business." That term is defined in caselaw as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action." The members, the argument goes, have no option to take action on Beshear's reorganization of the board.
https://caselaw.findlaw.com/ky-supreme-court/1092479.html
Under this theory, the members' private discussion of the lawsuit might be deemed permissible since the law requires the presence of a quorum *and* discussion of public business to trigger the agency's duties.
Unless they can convince the attorney general or the courts that this is the case, or, alternatively, that they did not meet improperly to discuss the lawsuit, the shadow of a successful open meeting challenge looms.
The irony, of course, is that the board began its existence under the shadow of an open meetings violation (actually, multiple violations).
In a 2018 open meetings decision, the attorney general determined that the board "violated KRS 61.815(1)(a) in failing to comply with all notice requirements prior to entering into a closed session during its April 17, 2018, special meeting; violated KRS 61.815(1)(d) by discussing matters other than those publicly announced prior to convening the closed session. . . [and] violated the [law] in discussing a general personnel matter that exceeded the scope of KRS 61.810(1)(f) during the closed session."
https://ag.ky.gov/orom/2018/18OMD094.doc
This was the meeting at which former Commissioner Stephen Pruitt tendered his resignation in the course of the board's marathon closed session during which the members improperly discussed "Pruitt's employment contract." I attended that meeting and observed the violations. Then-Attorney General Beshear fairly resolved the issues against the board.
If presented with an open meetings challenge to the action that preceded today's announcement by the "current board members'" of their decision to take legal action, Kentucky's new Attorney General, Daniel Cameron, may face the first test of his understanding of the law.
