The Lexington Herald Leader reports that the Kentucky Fish and Wildlife Commission has — for the fourth time in two years — appointed Rich Storm as Department commissioner.
The remedial action was apparently prompted by a lawsuit filed on June 17 in Franklin Circuit Court seeking Storm's removal and the voiding of his contract based on open meetings violations that occurred in conjunction with his previous "appointments."
In an appeal to the Attorney General, Larry Richards successfully argued that the Commission failed to observe the requirements for going into closed session mandated by KRS 61.815 on three occasions.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23045
The Attorney General then dismissed these violations as "technical," notwithstanding the fact that KRS 61.848(5) states that "Any rule, resolution, regulation, ordinance, or other formal action of a public agency without substantial compliance with the requirements of KRS 61.810, *61.815*, 61.820, and KRS 61.823 shall be voidable by a court of competent jurisdiction."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23055
"Formal action" could include reappointment and extension of an employment contract.
Despite two-plus decades of open meetings analysis emanating from the Attorney General's office and recognizing that reappointment is not equivalent to appointment, the Attorney General rejected Richards argument that closed session discussions of then sitting Commissioner Storm's reappointment — under the open meetings exception for discussions or hearings that might lead to the appointment, discipline, or dismissal of a member or employee — were illegal. Under a line of OAG authority dating back to 1994, Richards argued, the Commission reappointed — rather than appointed — Storm in 2019 when he was the sitting commissioner.
https://ag.ky.gov/Priorities/Government-Transparency/orom/1994/94OMD063…
Kentucky's highest court has made clear that "Under the personnel exception, a public agency may enter closed session only for 'discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student.' KRS 61.810(1)(f). These three topics are the only personnel matters a public agency may discuss in closed session. Discussions of any other matters are expressly precluded."
https://caselaw.findlaw.com/ky-supreme-court/1607534.html
In other words, had the legislature intended to authorize closed session discussion of reappointment of a current employee or member, it would have added "reappointment" to this narrow list of permissible closed session topics.
In a special meeting conducted on Tuesday, the Commission "unanimously voted to terminate on Wednesday the third contract it approved in April for Storm and start on Thursday a new contract for him not to exceed four years with the same pay and benefits."
Richards has advised The Herald-Leader that he does not intend to withdraw his open meetings lawsuit in the Franklin Circuit Court.
The question now becomes whether three violations of KRS 61.815 warrant the voiding of Storm's contract. Additionally, the question posed is whether Daniel Cameron's broad interpretation of the "personnel exception" — KRS 61.810(1)(f) — is correct or whether that of five of his predecessors is correct and the closed session discussions of Storm's reappointment were illegal.
Finally — and in light of yesterday's events — the question is whether "actions decided upon in the improper closed session can be ratified by a quick up-and-down vote in open session."
The Kentucky Supreme Court has — in the past — said "no."
"A public agency cannot ratify actions improperly taken in closed session. When conversations and actions regarding the public's business should not have occurred in private in the first place, an agency cannot render those actions valid by simply taking a vote in open session without any discussion of the matter. To permit the agency to do just that in this case would eviscerate the Open Meetings Act."
https://caselaw.findlaw.com/ky-supreme-court/1607534.html
These questions are now in the hands of the Franklin Circuit Court.
