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The ineffectual rubber stamp

How can a public agency “cure” an open meetings violation?

The Journal reports on a Colorado school board’s questionable efforts to correct an open meetings violation involving dismissal of the district’s superintendent in closed session:

“‘The public is entitled to the sausage, and seeing how the sausage is made. Consequently, the agency must share the thoughts and motivations underlying their decisions in order to make a truly public and lawful decision.’

“The agency cannot just ‘rubber stamp’ prior decisions and ‘consider the matter closed.’

“In 2012, the Colorado Court of Appeals ruled that a governing body can ‘cure’ an open meetings law violation by holding a meeting that complies with the law ‘provided the subsequent meeting is not mere “rubber stamping” of an earlier decision in violation of the Open Meetings Law.’

“‘To me, that means having a substantive discussion in a public setting,’ said Jeff Roberts, executive director of the Colorado Freedom of Information Coalition.”

The same is true in Kentucky.

Also in a 2012 Supreme Court opinion, Kentucky’s highest Court rejected the argument that “by voting in open session in accordance with KRS 61.815(1)(c) the Board ratified the actions taken in the improper closed session.”

The Court opined:

“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 Board to do just that in this case would eviscerate the Open Meetings Act. 

“Contrary to Carter's argument, it is inconceivable that the General Assembly intended to allow a public agency to conduct its business behind closed doors, regardless of whether an exception authorized the closed session, and then protect its private dealings by taking a quick vote in open session and claiming the secret actions valid by ratification. Such an interpretation is fundamentally at odds with the purpose and spirit of the Open Meetings Act.“

Instead, the Court held:

“If a public agency wants to effectuate actions that were originally taken in an improper closed session, it must, to the extent possible, begin anew. Though a bell can never truly be un-rung, the agency must take up the matter and start over in open session, handling the matter as the agency would any business the law requires be conducted before the public.”

Carter v Smith (2012)

See also, Webster County Board of Education v Franklin (2012)…1462350735 (affirming Carter v Smith and recognizing that “any ability to ratify actions done improperly renders the Open Meetings Act meaningless. Ratification cannot be allowed to legitimize unauthorized conduct at an improperly closed session. Because no vote was taken [by the Webster County School Board] during an open session and because consensus was not established, the action of the board cannot be ratified. As aptly explained by the trial court, the Board could not ratify an action that never took place”).

Kentucky’s courts agree with Colorado’s courts that “the public is entitled [not just] to the sausage, [but to] seeing how the sausage is made.” “The formation of public policy is public business and shall not be conducted in secret.”…1462350735


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