The Kentucky Office of the Attorney General issued a decision this week declaring that the University of Louisville board of trustees violated the state’s open meetings law by letting participants video conference into their meetings’ closed executive sessions.
UofL has until early March to decide whether it will appeal this decision to circuit court, but if it is not successfully challenged, the trustees would be legally required to release the minutes or recording of those closed sessions, and the actions taken after such closed sessions might be deemed voidable if challenged in court.
The Courier Journal presented its appeal to the attorney general’s office in December, arguing that during at least five meetings that year, the UofL trustees violated a section of the Kentucky Open Meetings Act that prohibits a public agency from conducting a closed session through video teleconference.
Ruling in favor of the newspaper, the AG’s office recognized that this decision “creates notable inconvenience for members of public agencies,” but added that “such inconvenience must yield to the express language of the Open Meetings Act.”
The decision, signed by Attorney General Andy Beshear and Assistant AG Matt James, also stated that members would be allowed to listen and watch a closed session via video teleconference under the law so long as they did not participate.
The Courier Journal sought a number of remedies in its complaint that UofL would be obligated to fulfill if the university did not successfully appeal the decision. Those include a public acknowledgment of its violations; ceasing to allow trustees to participate in closed session through a video feed; revealing all closed sessions in recent years in which a trustee participated through a remote feed; releasing any audio or video recordings of such closed sessions; providing the minutes of those closed sessions; and detailing any actions taken after those closed sessions.
These closed discussions of the trustees, if forced to be revealed to the public, could include remarkably contentious issues that involve potential and continuing litigation, such as the firing of longtime athletic director Tom Jurich.
It could also involve a closed session incident involving former head basketball coach Rick Pitino and trustee John Schnatter last summer, in which Pitino claims that the Papa John’s founder humiliated him over a video feed.
While most trustees attend meetings in person, Schnatter routinely joins the meetings by Skyping in.
Additionally, Jon Fleischaker, the noted First Amendment attorney who is representing the Courier Journal, told WDRB on Monday that any decision that the trustees made after an illegal closed session would be voidable in court.
Amye Bensenhaver, the director of the Bluegrass Institute Center for Open Government, told IL that the attorney general’s office made the correct decision and she didn’t see any way that UofL could win an appeal of such a clear-cut case.
“I would argue that the statute’s clear on its face, there’s nothing really here to litigate,” said Bensenhaver, who wrote nearly 2,000 legal opinions on open records and meetings law during her 25-year career as an assistant attorney general in Kentucky.
“I don’t think there’s any way you could reach any other conclusion than the AG reached, and therefore, there’s really no reason to expend taxpayer money to fight this battle,” in a circuit court appeal, she added.
However, just as Bensenhaver wrote in a blog post in December on how the UofL trustees were violating open meetings law by videoconferencing in closed sessions, she added that she did not believe the violation of this specific section of the statute makes actions taken by the trustees in such meetings voidable.
She also told IL that there is no legal requirement for UofL to make an audio or video recording of its closed sessions, so the trustees may find themselves insulated if they haven’t done so.
UofL spokesman John Karman told IL that the university is still reviewing the ruling to determine its next steps. He added that while the trustees do record and post the video of their meetings, they do not record either the audio or video of their executive sessions.
Asked how UofL would produce the minutes of such closed session without a recording if they lost a hypothetical appeal, Karman said he did not want to speculate.
Fleischaker told IL that his client’s remedies must including finding out what happened in those illegally conducted closed sessions, even if they weren’t recorded. Asked if UofL’s recreation of the minutes from the closed sessions would suffice, he said “it depends on what they say,” adding that if these are not acceptable, “we could ask them under oath.”
He also affirmed his belief that the actions taken by the trustees after coming out of such closed sessions could be voided by a judge.
“It’s possible to legitimately argue that if they had a discussion about doing ‘x’ in the closed session and then they came out and voted for ‘x,’ that could be voidable,” said Fleischaker. “But that would be up to a court to decide.”