In response to concerns expressed about the legality of University Of Kentucky policies governing the recording of votes by individual members of the Senate Council in the minutes of council meetings, the Kentucky Open Government Coalition stated its position:
Dr. Jones:
You shared with me your recent open records request to the University of Kentucky:
"At today's Senate Council meeting, it was mentioned that the UK Legal Office (Clifton Iler) has rendered, and apparently reconfirmed, his interpretation of the requirements of the Open Meetings Act in regards to making a record of votes cast at meetings. I request a copy of the cited rendition by Deputy General Counsel Iler."
You also shared the university's denial:
"Pursuant to your recent Open Records Request, please see the attached case law responsive to your request. Specifically, please see page 14 of the PDF document at headnotes 22 and 23."
To begin, this response did not satisfy the university's statutory duty under KRS 61.880(1). You requested the deputy general counsel's "interpretation of the requirements of the Open Meetings Act in regards to making a record of votes cast at meetings." You did not request a copy of the opinion on which that interpretation was based. Inasmuch as the nondisclosure of the requested interpretation was tantamount to a denial of your request, the university was required to cite the exception authorizing nondisclosure and explain how the exception applies to the record (deputy general counsel's legal interpretation) withheld per KRS 61.880(1).
The case attached in lieu of a statutorily compliant response, Blau v. Fort Thomas Public School District, is a 2005 opinion of the Sixth Circuit Court of Appeals that briefly addresses whether a middle school site based council discharged its obligations under the Kentucky Open Meetings Act in recording a unanimous vote (e.g., a consensus with no dissenting votes) on a proposed dress code.
https://scholar.google.com/scholar_case?case=14305867552415913653&q=bla…
The court opined:
"The minutes show that the dress code was read aloud, and they list the changes made to the code by the Council prior to enactment. They also state that '[a]fter a lengthy discussion the Council reached the consensus to adopt the Dress Code.' JA 581. The Kentucky Open Meetings Act requires only that the 'minutes of action taken at every meeting' of any public agency set 'forth an accurate record of votes and actions at such meetings,' and that they be recorded and open to public inspection. Ky.Rev.Stat. § 61.835. The Council minutes state that a second reading was conducted and record the action taken, which is all that the Act requires. See Ky.Rev.Stat. § 61.835."
While it is well established in the law that a public agency discharges its duties under KRS 61.835 by indicating in the minutes that a vote was unanimous, it is equally well-established that if a vote is not unanimous, the minutes must reflect the names of each agency member and how s/he voted.
See, 12-OMD-O67 and authorities cited therein.
Thus, I take no issue with the Sixth Circuit's opinion in Blau, there being nothing in the factual narrative to suggest that any site based council member cast a dissenting vote.
I do, however, take issue with the notion that Blau authorizes a public agency to omit the names of each agency member, and how s/he voted, if the vote is not unanimous.
This interpretation is nearly as old as the Open Meetings Act itself. Counsel exposes the university to a successful legal challenge, and the consequences that flow therefrom, by ignoring nearly four decades of unchallenged legal interpretation.
KRS 61.835 prescribes the means by which votes and actions must be recorded. It provides:
"The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23051
The Office of the Attorney General has consistently construed KRS 61.835 to require a public vote of the members in attendance and a record of how each member voted unless the vote was unanimous.
Thus, in OAG 91-196, the Attorney General recognized:
"KRS 61.835 requires in part that the minutes of action taken at every meeting of a public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded.
"In OAG 82-412, at page four, we said the statute requires that the minutes of the meeting show how each member voted or if he abstained except, if the vote was unanimous, it is sufficient to so state in the minutes. Finally in OAG 82-341, at page one, this office said, 'When final action is taken by a public agency in open session the vote cannot be by secret ballot and it must be recorded in the minutes how each member voted.'
"Thus, a public body, cannot vote by secret ballot and the minutes of the meetings must indicate how each member voted on each issue before the [public body]. KRS 61.835 is the controlling provision."
Again in 01-OMD-141 and 12-OMD-067, the Attorney General reached this conclusion. As recently as 2017, the Attorney General declared, "In light of the principle that '[t]he formation of public policy is public business,' this office has consistently construed KRS 61.835 to require a public vote of the members in attendance and a record of how each member voted." 17-OMD-151.
In the end, it is the fundamental principle that "the formation of public policy is public business" that informs all of these open meetings decisions/opinions.
Without an accurate record of who voted how, the public cannot hold its elected and appointed officials accountable. The minutes of a meeting, representing the official record of that meeting, are devoid of meaningful content. If a consensus vote is construed as a majority — rather than a unanimous — vote, relieving the agency of its duty to record how each member voted, nearly four decades of legal authority is abandoned at the clear expense of the public's right to know.
As a retired assistant attorney general who adjudicated open meetings appeals for decades, and on behalf of the Kentucky Open Government Coalition, an advocacy group on which I proudly serve, I find no legal support for the legal interpretation advanced by University of Kentucky Assistant Deputy Counsel. I strongly urge the Office of Legal Counsel to revisit this issue, review the decades of legal authority cited above, and be guided by that authority as well as by Blau — which, in my view, supports the referenced authority.
Respectfully,
/s/ Amye Bensenhaver
Retired Assistant Attorney General
Co-founder, Kentucky Open Government Coalition
https://www.uky.edu/universitysenate/sites/www.uky.edu.universitysenate…
