Portions of this are taken from a Courier-Journal story on Thursday by Andrew Wolfson (those references are below in ” marks — http://www.courier-journal.com/story/news/2017/09/27/pitino-jurich-polling-broke-kentucyk-open-meetings-laws/709450001/
Anyone who knows a basketball is round can probably recite all of the events that took place this week in the Commonwealth, all connected with that college/university sport.
And they can tell you it culminated Wednesday with the suspensions of UL athletic director Tom Jurich and head basketball coach Rick Pitino. It’s ok to say they were fired but for the sake of making sure it’s all done according to the contracts with those two, UL is saying “suspended.”
Maybe UL should have also ensured it was done according to law, specifically the State’s Open Meetings Law.
You see, during a press conference with the interim UL president, Board chairman David Grissom chimed in. He said the Board had signed off on the process to suspend Jurich and Pitino.
Huh? There was a vote of the Board or some gathering to get the Board’s ok with what was going to happen?
“At a news conference Wednesday about the suspensions, trustees Chairman J. David Grissom told reporters that he called every trustee to get their take on how best to respond to the recruiting scandal. Every trustee told Grissom they supported acting President Greg Postel’s decision to suspend athletic director Tom Jurich and men’s basketball coach Rick Pitino.
“Those one-on-one discussions, however, violated Kentucky’s open meetings laws because they were in effect a series of private meetings, said attorney Jon Fleischaker, a First Amendment expert who often represents the Courier-Journal and other media outlets. The law requires meetings of public boards to be open to the public and news media and to be publicized in advance.”
This provision was added to the Open Meetings Law in its 1992 rewrite as a way to try to stop public agencies meeting in small groups — we term them serial meetings — in a way to get around the law. There were plenty of examples cited where agency heads would meet with a small number of voting members of the board/council/court to get a consensus on any particular issue. If the small group meetings ultimately resulted in a majority of the members being involved, then that was considered an illegal meeting. Take the number as a whole to determine that, not the number of people in any one meeting or even the number of meetings. If at the end of that process a majority was in discussion, then the meeting was not legal.
You can see by one of the above quoted graphs that Grissom says he contacted every UL trustee individually to “get their take” on acting President Greg Postel’s decision to suspend the two.
Whether by phone or in small group meetings, the law doesn’t differentiate. If in the end a majority of the whole were contacted or participated in a discussion of public business, it’s in effect a series of private meetings and in violation of the state’s Open Meetings Law. That’s from Kentucky’s foremost authority on Open Government, Jon Fleischaker, who authored the original laws in 1974 and 1976 and headed the rewrite in 1992. He’s also KPA General Counsel and has represented several newspapers and the AP in open government issues.
So what’s the remedy? Well, in some cases had the Board voted in an illegal meeting to take whatever action, the Board would have to re-convene in open session, and then in the normal process vote on whatever the recommended action is. But Jon says since the Board did not act on a motion but merely took a statement of support for the president, the only remedy is for the Board to admit it made an error, it violated the intent of the Open Meetings Law and will not do that again.
The UL Board meets October 19 so we’ll see if any statement is issued.
Pitino should demand a public hearing as offered under the Open Meetings Law
Here’s one part of the law I wish could happen in this case. Any discussion or hearing that could lead to the appointment, discipline (suspension for instance), dismissal (firing for instance) of an employee, member or student can be held IN PUBLIC at the discretion of the employee, student or member. So maybe we could get both Jurich and Pitino to quote this law and ask the UL Board to hold the public hearing so that everyone could hear what is taking place. Might be the most-covered public hearing/open meeting in the history of the Commonwealth.
Interestingly enough, Pitino’s contract apparently calls for “an opportunity to be heard” before he is fired. So how about it Rick? You and only you can demand a public hearing on discipline/dismissal. Let’s hear from you. Answer the questions from UL and address any issues the Board or administration brings up about the discipline/dismissal. We could fill Rupp Arena with reporters alone if you’ll simply tell UL you want a public hearing.
Here’s the text of KRS 61.810 (1)(f):
(f) Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee’s, member’s, or student’s right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret.