EDP briefed on how to follow open meetings law

Published 12:23 pm Friday, February 23, 2018

The recently reorganized Danville-Boyle County Economic Development Partnership Board of Directors got a primer on open meetings law this week from Danville City Attorney Stephen Dexter.

“I appreciate fully your need and desire to respect confidentiality of certain prospective business clients,” Dexter said. “I think in order to observe that, you may have to act in a manner that is somewhat different than you have in the past.”

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Dexter briefed the EDP board on the Open Meetings Act at the request of Danville City Manager Ron Scott. Scott said after the meeting that EDP Chair Ben Nelson “expressed on several occasions the desire to be in full compliance with the legal requirements of closing a regular meeting of the EDP and going into an executive session, as well as stating that he was not well-versed in those requirements, as it was a new process for him.”

“I suggested to him that I could ask the city attorney to make a presentation to the full EDP board on the issue,” Scott said.

Nelson said during the EDP’s board meeting Wednesday that in addition to having Dexter provide information, the EDP is asking the Boyle County Fiscal Court and “independent counsel” for information about open meetings law.

“We’re going to get multiple takes on this, but I think given our restructuring, trying to reset the baseline and understand how we go forward, we need to get everybody’s opinion on the table,” Nelson said.

Dexter went over the basics of public meetings and the exceptions that allow public agencies to enter closed session to discuss specific sensitive matters. A public agency must hold a public meeting that is open to anyone to attend any time a majority of its members gather to discuss public business or take action. In the EDP’s case, a majority, or quorum, is equal to nine of the 16 current voting members.

Dexter said committees formed by public agencies also must meet in public and the same quorum rule applies based on the number of members of each committee — a five-member committee’s quorum is three, for example.

Case law is absolutely clear that all public agencies and their committees must meet in public, said Dexter, reviewing with board members a list of cases where rulings affirmed and re-affirmed the openness of committees.

“So my initial conclusion is this: That because the EDP has agreed to be bound by the terms of the Kentucky Open Meetings Act, its executive committee, as a standing committee, is therefore subject to the act,” he said. “… However, closed sessions deliberations are still permissible, as long as one of the following exceptions apply.”

Dexter listed three exceptions he thought the EDP might be more likely to use than others: discussions about hiring, firing or discipline of personnel; discussions about buying and selling property when publicity could affect the price; and discussions between a public agency and a business entity regarding a business proposal if public discussion could jeopardize the proposal.

Nelson questioned whether a nominating committee, such as the ones the EDP used to choose its new at-large members and its new officers, would have to discuss their potential nominations in public.

Dexter said the law is clear: yes.

“We never said that this was easy. Actually, compliance can sometimes be a challenge,” Dexter said. “… When people are nominating themselves or others to serve a public interest, they therefore by that mere nomination are going to be subject to additional scrutiny. And while that can be tough, it is what the law requires.”

“So when I put together an ad-hoc officer nominating committee and a majority of that committee was there, it should have been an open meeting,” Nelson said.

Danville City Attorney Stephen Dexter briefs members of the EDP board on open meetings law Wednesday. (Photo by Ben Kleppinger)

“That is correct,” Dexter said.

Dexter said that “a lot of” a committee’s meeting can be held in closed session if necessary, as long as it’s discussing things it can legally be in closed session to discuss.

“You shouldn’t be concerned about the number of times you have to go into executive session — matter of fact your whole meeting may be in executive session,” he said. “And that’s OK.”

Nelson said the EDP’s executive committee — made up of one representative from each voting partner group — has not convened yet, because he is waiting to make sure things are done in accordance with open meetings law.

Nelson asked if Danville and Boyle County governments discuss the appointments they make to boards in public session and Dexter and Boyle County Judge-Executive Harold McKinney confirmed that is the case.

“So when (Boyle County) figured out who the three fiscal court appointees to this (EDP) board were, where does that discussion happen?” Nelson asked McKinney. “In a sub-committee?”

“In a public meeting,” McKinney answered. “And all our committee meetings are open to the press. We pass a committee meeting schedule and it’s handed to the press.”

McKinney said it’s also important to note that open meetings must be held in locations that are easily accessible to the public. And public agencies must also avoid holding a series of less-than-quorum meetings that, when all the meetings are added up, involve a quorum of the public agency, he said.

“That’s hard to do, because … our folks talk,” McKinney said. “You have to be really, really careful.”

Nelson said the executive committee “will not be a decision-making body.”

“Its job is to prepare the agenda for this meeting and bring forth recommendations to (the full EDP board),” Nelson said.

Dexter said under open meetings law, what Nelson just suggested would be considered taking action. Even just voting to set an agenda is considered action, he explained.

Dexter said public agencies should always follow “strict compliance” with the Open Meetings Act and interpret the exceptions that allow executive sessions “extremely narrowly.”

“If there is a question of which way should we go? My advice is always toward openness,” he said. “So if it’s a close line — you say, ‘it may apply, but I could see an avenue where it wouldn’t apply’ — you open it. You never waiver on the side of closure when you come to open meetings.”

Dexter said if Nelson wanted to meet, for example, as the chair of the EDP with EDP President Jody Lassiter and EDP Chief Operating Officer Hal Goode, that would be a meeting with staff and not subject to open meetings — “that’s not a committee; that’s a governance measure.”

Danville City Commissioner Denise Terry offered as an example: Up to two city commissioners can meet with City Manager Scott and because it’s not a quorum, it’s not required to be a public meeting.

Nelson eventually said, “The answer is the executive committee will have to be an open meeting.”

“Initially, the reaction is it’s burdensome to comply” with open meetings law, Dexter said. “… However, I will say this: Because of the law, it will gain credibility in your actions, because there is accountability and a public witness of the action.”

“What I think we’ve all agreed to is we want to abide by the letter of the law … and the spirit of it,” Nelson said. “We need to be educated as to what the nuance of it is. My commitment is I want to be as transparent, as open and held accountable to the public as we can be.”

EDP tables location change for board meetings

Also at Wednesday’s meeting, the board discussed relocating its regular meetings to a space that would better accommodate its new, larger number of members.

Nelson said he wanted to accept an invitation to hold the EDP board meetings at Denyo Manufacturing in the industrial park. The EDP could meet there for perhaps three months and see how it goes, he said.

City Commissioner Terry said she didn’t think that was a good idea.

Danville City Commissioner Denise Terry, right, said she is uncomfortable with moving EDP meetings to Denyo Manufacturing, in part because it might not be “inviting” to the public. (Photo by Ben Kleppinger)

“I don’t think it looks good to have it on a private business property,” Terry said. “I think it may look like we’re showing favoritism; I don’t think it’s very inviting for the public to come to.”

Danville Mayor Mike Perros said, “That’s why I threw the library out here, in addition to the fact it’s more centrally located.”

Terry said she had suggested using the meeting room at Danville’s water treatment plant and is asking into whether the Boyle County Senior Citizens Center could be used.

“I think we tossed out (Inter-County’s public meeting room) also; I don’t know what their policy is,” Terry said. “I just don’t think it’s very transparent to have it in a private corporation who is also part of the Industrial Foundation. What are these other factories going to say?”

John Albright, an Industrial Foundation representative on the EDP board, said he disagrees with Terry.

“They’ve offered, they have a brand new facility, I think that’s Joey (Harris’) effort to allow the community to come in and see what they’re doing,” Albright said. “We’re only going there for three months and then it can be brought back and see where —”

“I don’t think citizens are going to feel it is appropriate to go to a private business,” Terry said.

EDP board members suggested rotating the board meetings to different businesses; and using Danville City Hall.

Terry said rotating would create more confusion about where the public needed to go to attend EDP board meetings.

Nelson said using Inter-County’s public meeting room seems to raise the same problem as using Denyo; he questioned if using Danville City Hall would then show “favoritism among the public partners.”

Nelson went around the table, asking each member in attendance their opinion. Some agreed with Terry and said public perception of where the meetings are held is most important; McKinney said he supports meeting at Denyo; Scott said he likes the idea of using the library; Danville Schools Superintendent Keith Look suggested using Danville High School’s meeting room.

“I’d just like to try some place other than this,” said Walter Goggin, EDP treasurer.

“I’ll defer this and we’ll look further given Denise’s concerns and some of you all supporting those concerns,” Nelson said. “So the March meeting will be here.”