Eastern Progress files appeal with Kentucky Attorney General

By Jennifer K. Perkins, Eastern Progress

After the (Eastern Kentucky University) Board of Regents denied allegations of violating the Kentucky Open Meetings Act during its closed session on March 19, The Eastern Progress submitted an appeal to the Kentucky Attorney General’s office on April 17.

During a special called meeting on March 19, the Board of Regents spent five hours in closed session.

A closed session occurs when a public agency goes into a private meeting to discuss specific personnel issues, the sale of public property that could give buyers an unfair advantage, among others.

Board of Regents chair Craig Turner cited exceptions to the open meetings act KRS 61.810(c) and (f) in a motion that contained the phrase “dismissal of an individual employee” in order to enter the closed session. After five hours, the Board exited closed session with a brief statement by Regent Lewis Diaz. His statement, however, included the phrase “individual employees.”

The distinction between the two phrases led The Eastern Progress to consult with Attorney Jon Fleischaker.

Fleischaker has more than 40 years of experience in media and First Amendment law, according to the Kaplan Johnson Abate & Bird LLP law firm. He is known for helping draft the Kentucky Open Meetings Act and Open Records Act in 1974 and 1976, respectively.

Fleischaker helped The Eastern Progress draft a letter of complaint to the Board of Regents, which was filed on April 3 by Jennifer K. Perkins on behalf of The Eastern Progress.

The letter included a brief summary of the background information from the meeting on March 19.

Background information included the motions used to enter and exit closed session and the admission of individuals, such as Barry Poynter, the vice president of finance and administration; Kristi Middleton, chief external affairs officer; David McFaddin, vice president of government relations; and Tanlee Taulbee Wasson, assistant vice president for institutional effectiveness, to the closed session meeting for the last three hours and that no immediate pending litigation could be located that involved Eastern Kentucky University.

After providing the background information, the letter included case law that supported the allegations of violating the open meetings law. The case law included 16-OMD-109; Floyd Cnty. Bd. of Educ. v Ratliff, 955 S.W.2d 921, 924 (Ky. 1997); Jefferson Cnty. Bd. of Ed. v. Courier-Journal, 551 S.W.2d 25, 28 (Ky. Ct. App. 1977); 12-OMD-093; OAG 83–415; 03-OMD-089 p.13; Carter v. Smith, 366 S.W.3d 414, 420 (Ky. 2012); OAG 92–146; 13-OMD-006; 17-OMD-158; OAG 77–560, p. 2 quoted in 00-OMD-219 p. 5.

The case law explains that the attorney general has already ruled that the KRS 61.810 (f) exception can only be used in the case of an individual employee. It cannot be used to discuss the appointment, discipline or dismissal of a group of employees for reasons such as financial cuts to university funding.

The letter also used case law to explain why selective admission to such a meeting was an issue. Members of the finance and administration office were invited into the meeting, as well as members of communication and brand management. Reporters from The Eastern Progress and The Richmond Register were not allowed to enter the meeting until the closed session had ended.

The letter ended with three recommended remedies to the issue:

The Board acknowledge the violations,

It release any unredacted or unedited records or recordings from the meeting,

The Board publicly commit to a future course of conduct consistent with all requirements of the Open Meetings Act.

After the letter was filed to Turner and Dana Fohl, university counsel and secretary to the Board of Regents, recipients had three business days to respond.

On April 6, The Eastern Progress received a response letter from Turner.

“I’m disappointed that you felt like we should make these decisions quicker,” Turner said in his letter. “Approximately 120 individual employees’ terminations were discussed as well as litigation.”

Turner addressed the closed meeting by restating the KRS 61.810 (1) © (f) exceptions and explaining that no action had been taken upon the Board’s return to open session. He briefly addressed the April 6 meeting, although it was not mentioned in the complaint.

Turner denied any allegations of open meetings violations.

The Eastern Progress has taken the next step and appealed to the Kentucky Attorney General’s Office. Attorney General Andy Beshear has 10 business days to respond. After the decision is handed down, either party will have 30 days to appeal to the Madison County Circuit Court or the decision will have the force and effect of law, according to “Protecting Your Right To Know: The Kentucky Open Records and Open Meetings Acts.”

To see the full complaint filed by The Eastern Progress and Turner’s letter of response, visit easternprogress.com.

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