By AMYE BENSENHAVER

Guest columnist

What violation of the open meetings law is as common as crabgrass and just as pernicious?

Ask the Glasgow Daily Times. On April 2, the newspaper reported that it would appeal the Glasgow Electric Plant Board’s denial of a complaint alleging that the board violated the open meetings law by engaging in a series of less than quorum nonpublic meetings to discuss board business but avoid the requirements of the law. (The article appears at http://bit.ly/2K4mWyo.)

Its an illegal practice known as a serial meeting or a “walking” quorum. Two agency members privately discuss public business then “walk” to a third member to discuss the same business, and so on.

This is certainly not the first, and undoubtedly will not be the last, time such a violation has been alleged since the open meetings law was amended in 1992 to address the problem by prohibiting “any series of less than quorum meetings, where the members attending one or more of the meetings collectively constitute at least a quorum of the members of the public agency.”

Virtually anyone who regularly attends public meetings has witnessed it. Agency members publicly “discuss” a matter of greater or lesser importance for a few minutes at an open meeting. Because they have predetermined the outcome in less than quorum discussions that precede the public meeting, there is no meaningful discussion or debate.

Some agencies defend it as a service to the public, a means of reducing protracted discussion, as well as the length of their meetings, and sparing the public from the tedious details of the public business under consideration. 

But the public’s ability to fully understand the issue, or assess why its representatives voted for or against it, is nullified.

Not surprisingly, it is not a problem unique to Kentucky. On March 4, Cincinnati’s WCPO-9 News reported that five Cincinnati City Council members had admitted to breaking that state’s open meetings  law by conducting public business in private text messages and emails with each other.  The city agreed to pay $101,000 to settle the pending “Gang of Five” text messaging scandal lawsuit.

Texas is wrestling with the same issue, its courts having recently  decriminalized walking quorums when it struck down criminal penalties for the practice. (There are no direct criminal penalties for violation in Kentucky’s law.)

The Denton Record Chronicle reports that Texas lawmakers are considering a legislative cure for the court’s ruling.

Here, as in Texas, proving a violation of the open meetings law based on serial less than quorum meetings “requires luck and magic” unless, as in Cincinnati, the members offer a rare admission of wrongdoing.

The Chronicle points to evidence in one case that 443 out of 444 agency votes were unanimous, asking “in what world do seven people agree 99.9 percent of the time without prior, off-the-grid discussions.”

In Kentucky, the challenges are even greater since our law requires proof that the challenged serial meetings were “held for the purpose of avoiding the requirements” of the open meetings law. In addition, our law permits serial meetings  “between individual members where the purpose of the discussions is to educate the members on specific issues.”

What self-respecting agency member will volunteer that he or she engaged in serial meetings to avoid the requirements of the open meetings law? And what self-serving public agency will not avail itself of the defense that its members were merely “educating” themselves “on specific issues.”

It is a serious problem in this, and other, states and one that is almost certainly on the rise given the use of email and text messaging. Those communications are, by the way, public records under state regulation, and agency members are required to preserve and retain them regardless of whether they are stored on publicly issued or privately owned devices.

Serial less than quorum meetings are the crabgrass of open meetings violations.

But unlike crabgrass, violations of the open meetings law based on serial less than quorum meetings do not go dormant in the winter months. They are a year-round blight on the open government landscape.

Amye Bensenhaver is a former assistant attorney general who specialized in open meetings and open records law. She is a lead organizer of the Kentucky Open Government Coaltion.