This November 3 article from The Cincinnati Enquirer -- entitled "Issue 22: 'Public' meetings or 'cooked deal'? What The Enquirer found"-- caught our eye.
With most eyes on Tuesday's elections, it may have been one of the few sets of Kentucky eyes it caught.
But the issues it raises are critical to open government in both states -- indeed, in all states.
"Issue 22" asks Cincinnati's voters to allow the Cincinnati Southern Railway Board to sell the city-owned railroad to Norfolk Southern Corp. for $1.6 billion.
Enquirer reporter Sharon Coolidge begins her article by asking:
"Opponents of Issue 22 say powerful people hatched the plan to sell Cincinnati’s city-owned railroad in secret.
"Supporters and the board overseeing the railroad say they involved the public as much as possible.
"So which version of events is closer to the truth?"
The Enquirer concludes, "while Cincinnatians were invited to participate in meetings related to the sale, it would have been difficult for them to know what really was going on as the city embarked on what would be its biggest financial transaction ever."
The board -- a public agency subject to Ohio's open meetings law -- meticulously concealed its discussions of the sale while giving a passing nod to the public's right to know.
"Meeting notices for the Cincinnati Southern Railway Board, which negotiated the sale, appeared in the city’s weekly online 'bulletin' but didn’t mention selling the railroad.
"Minutes from those meetings, which are posted on the board’s website, offered some clues a sale was possible, occasionally referring to a 'potential sale or lease of real estate.' But those minutes don't mention that such a sale might involve the entire, 337-mile-long railroad.
"Board members didn’t talk about the potential sale publicly, either, choosing to discuss it instead in executive sessions closed to the public. And when they held regular meetings last year, most were at the Queen City Club, Cincinnati’s most exclusive private club.
"Board members say the Queen City Club meetings were open to the public and featured free parking, but no one ever came. It’s unclear, though, what would have happened if people who were not club members had shown up unannounced.
“'This is a private club and only members come here,' said Giovanni Ranieri, general manager of the Queen City Club.
"The board members and their supporters say the process was as transparent as it could be.
“'Every meeting was open. Every meeting was public,' said railway board member Amy Murray in a September radio interview.
"But critics of the deal disagree.
"'It's been a cooked deal from the get-go,' said Tom Brinkman, a former state representative. 'The board never said they were negotiating to sell the whole railroad until they took a vote to sell it. If they wanted people to know about the sale any of the members could have said so at any point in the process. And they didn't.'"
Brinkman sued, "arguing that executive sessions only are permitted when those real estate deals involve competitive bids, which was not the case in the railroad sale.
"The board settled the lawsuit with Brinkman this year, paying him $500 and another $100,000 in legal fees without admitting wrongdoing. Board members did, however, agree not to meet in private again about the sale."
Adding insult to injury:
"The board’s eight meetings in 2022 before the formal sale announcement in November 2022 took place at the Queen City Club. The board, which had previously met at City Hall, spent almost $11,000 on meeting space at the club last year."
So what's the hubbub, Bub?
Just this. The board's actions belie its words -- at the public's expense both in taxpayer dollars and in the ability to cast an informed vote on Issue 22.
These are the consequences when public agencies -- in Ohio and in Kentucky -- engage in barely defensible conduct aimed at excluding the public from discussions of the public's business.
Ohio's notice requirements may differ and legal authority for conducting closed session may be broader, but the notion that a public agency can conduct a public meeting in a private country club defies logic.
Kentucky law clearly prohibits it.
Our law states that "[a]ll meetings of all public agencies of this state, and any committees or subcommittees thereof, shall be held at specified times and places which are convenient to the public. In considering locations for public meetings, the agency shall evaluate space requirements, seating capacity, and acoustics."
"Convenient to the public" excludes places from which the public is excluded.
Such was the decision in 2017 when the Attorney General found that "[a] private law office was not a location 'convenient to the public' for a special meeting of the Jefferson County Board of Education under KRS 61.820(1)," conducted on a Sunday.
The Attorney General reasoned:
"A public meeting must be held in ‘a place from which no part of the citizens … may be excluded by reason of not feeling they may freely attend.’” 13-OMD-186 (quoting City of Lexington v. Davis, (1949)) The standard here is one of reasonableness. In this case, the Board met in a private law office. We have previously noted as follows:
"A person has the right, in his private business, to control it, and may select such persons as he chooses with whom to transact such business. He can prevent whom he pleases from entering his office…. He can admit or reject whom he pleases. It is his own business, and the public have no rights therein against his wishes.
"Given these principles, corroborated by common experience as well as the specific experience of the appellants when attempting to access the office of Wyatt, Tarrant & Combs on a Sunday, we believe it reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting there."
In an open meetings decision issued just this year, the Attorney General determined that "places convenient to the public" excludes meetings held outside a local school board's jurisdictional limits -- in this case, a special meeting conducted 200 miles away from the district it served where board members were attending a statewide conference.
These open meetings decisions echo a 1977 open meetings case in which the Kentucky Supreme Court affirmed a Kentucky Court of Appeals opinion holding that meetings of the Jefferson County Fiscal Court which were held at a luncheon at the Louisville Boat Club -- and thereafter on a boat -- were illegal.
As for those claims of free parking and non-club members admission to "public" meetings conducted at a private members-only club in Ohio? They, too, might prove unsuccessful if challenged in Kentucky.
In a 2002 open meetings decision, the Kentucky Attorney General quoted the Davis case:
"No one would attempt to say that there was a deliberate aim upon the part of the Commissioners to meet in secrecy [when they met in the Mayor’s sickroom]; to conceal anything from the public; to exclude any person; or to mislead the public in any way. There was no concealed activity nor anything done indicative of umbrage. But, a public meeting presupposes the right of the public freely to attend such meetings. Anything which tends to 'cabin, crib or confine' the public in this respect would be destructive of the right expressly provided."
The court in Davis cited an even earlier opinion, Town of Springfield v. People’s Deposit Bank, in which a Kentucky court held that a meeting conducted in a saloon was not open to the public even though the saloon was a public place because members of the public would, on grounds of conscience, not feel free or at ease to go there." "To permit such procedure," the court concluded in Davis, "would create a situation that might furnish opportunity to set up a façade for secrecy."
This "opportunity for a facade of secrecy" is precisely what the Cincinnati Southern Railway Board took advantage of in conducting the public business in unnoticed meeting notices, silent minutes, closed discussions, and public meetings conducted on private premises.
The same "opportunity" -- if seized by a public agency in Kentucky-- comes at great risk up to and including a court's decision to void the action illegally taken.
$111,500 later, Ohio voters will decide on Tuesday if they were afforded sufficient "opportunity" to cast an informed vote on the $1.6 billion Issue 22.