WDRB tersely described the second meeting of the Impeachment Committee established by the House of Representatives — which was conducted on January 27 — as follows:

"The legislative panel voted Wednesday to make filings from both sides open to the public but then took deliberations on the matter behind closed doors."

The 2.5 hour closed door meeting subsequently conducted — along with the lengthy closed session at its first meeting — undermine the committee's original claim that its proceedings represented a "major change" and would not be conducted "behind closed doors."

"Anything we do," Chairman Jason Nemes (R Louisville) announced in the committee's first meeting, "will be open."

https://ket.org/share/legislature/archives/?nola=WGAOS+022040&stream=aH…

He probably should have modified that statement with the term "barely."

In response to WDRB reporter Marcus Green's tweeted question to the Kentucky Open Government Coalition about the propriety of the committee's closed session — and its failure to discharge the statutory duty to give proper notice of the statute authorizing the closed session, the general nature of the business to be discussed in closed session, and the reason for the closed session — we tweeted:

https://twitter.com/marcusgreenwdrb/status/1354556390371700739?s=10

"This gets complicated. The impeachment committee is a public agency for open meetings purposes. As a committee other than a standing committee of the GA is has authority to conduct closed sessions per KRS 61.810(1)(i). According to old attorney general's open meetings opinions, it is exempt from KRS 61.815(1)."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48229

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23045

"The old opinions say, 'T]he legislative intent [underlying KRS 61.815(2)] is that agencies, per se, which are exempt from complying with the Kentucky Open Meetings Act, like the Parole Board, juries, the Governor's cabinet, and committees of the General Assembly do not have to go through the KRS 61.815(1) formalities."

"01-OMD-181, pp. 10-11, citing OAG 80-248, p. 2. Correctly or incorrectly, this is how the law has been construed by the attorney general. If correct, the committee didn't have to cite the exception, describe the nature of the business to be discussed or the reason for the closed session."

We acknowledged that in this particular factual context:

"This issue has never been addressed by the courts or even, to my knowledge, the Attorney General. Arguably, yes the Impeachment Committee can do its business in closed session. But why publicly announce that the proceedings will be transparent if it had no intention of discussing its business publicly?"

"At a minimum, a record of the closed session — although not statutorily required — should be created. If a successful open meetings challenge were brought, a court could order its disclosure. The ends of transparency, justice, and history would be served. But I wouldn't hold my breath."

The greatest irony, of course, is the notion that the handling of the 2021 impeachment petitions by this "non-standing" Impeachment Committee is more transparent than the handling of past petitions by the standing House Judiciary Committee

Past petitions were "given to the standing House Judiciary Committee." While no action resulted in these cases, the standing House Judiciary Committee to which they were assigned has no separate statutory exception to the open meetings law. As a standing committee of the General Assembly, it should (or is legally required) to operate by the same rules as any other public agency that is not "per se exempt from complying with the Open Meetings Act."

https://www.courier-journal.com/story/news/politics/ky-general-assembly…

Thus, the standing House Judiciary Committee can only legally conduct a closed session when one or more of the remaining exceptions to the Act — for example, discussions of proposed or pending litigation or discussions which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student — authorize the closed session. And then only after it observes the requirements for conducting a closed session by identifying the statutory exception authoring the closed session, describing the business to be discussed, and stating the reason for the closed session.

Indeed, it could be argued that the Impeachment Committee could take final action in closed session — since it is not bound by KRS 61.815(1). The standing House Judiciary Committee legally could not and can not.

There is, in fact, a great deal more accountability built into meetings of standing committees — like the House Judiciary Committee — than "non-standing" committees — like the newly created Impeachment Committee.

This is particularly true when the Impeachment Committee professes a commitment to openness but unapologetically conducts virtually all of its business behind closed doors.

It's time Chairman Nemes bring the conduct of Impeachment Committee business out of the shadows and into the light or acknowledge that the Committee isn't terribly interested in openness.