Amye Bensenhaver

At 7 p.m. on May 5, two directors of the Glasgow Electric Plant Board Board of Directors – and a former director who last year resigned from the board but apparently had second thoughts – sat in the drive-thru of the plant board’s offices for the apparent purpose of conducting a public meeting. The plant board’s office had closed, per normal business operation, at 5 p.m.

The meeting was not convened as the law requires. In my view, the meeting had no legal effect.

Much has been written about protecting the public’s right to know how government is operating in the midst of a pandemic that threatens our welfare and deprives us of so much that we once took for granted.

But the public’s need to know how government is operating has never been greater. We cannot allow government to deprive us of our right to know.

Government cannot be permitted to exploit the global crisis to engage in secret discussions and backroom deals. We must keep a laser focus on what government is doing and how it is doing it. We must hold our elected and appointed officials to a standard of strict legal compliance to preserve our statutory rights.

This is why the presence of the two directors and a former director in the plant board drive-thru is so deeply offensive to those who cherish transparent and accountable government.

This is why I, as co-founder of the Kentucky Open Government Coalition and a retired assistant attorney general who mediated open meetings disputes for 25 years, took note of the occurrence.

To begin, the plant board currently operates under three sets of laws in conducting meetings: the “Little TVAs” statutes, enacted in the 1940s, that provide limited guidance on plant board meetings; the Kentucky Open Meetings Act, enacted in 1974, that provides extensive guidance on all public agency meetings, including the plant board’s meetings; and Senate Bill 150, a coronavirus relief bill signed into law on March 30, 2020, that makes limited modifications to the Open Meetings Act.

These laws must be reconciled and read in a manner that promotes the public interest in “the formation of public policy,” ensures that public business is not “conducted in secret,” and secures the public’s right to know. Public officials cannot cherry pick the law that suits their immediate need and ignore the others.

At a bare minimum, the public must be notified of all public meetings so that members of the public can exercise their right to attend either in person or “virtually,” through video teleconference. Neither the board chairman nor the board secretary issued notice of the meeting as required by the “Little TVAs” statutes.

The former board director who demanded the May 5 meeting did so by email. His standing to make the demand remains in question. There is no question that – absent signatures – simply listing the names of two directors, who purportedly joined in his demand, raises serious questions relating to authenticity and verification of the special meeting demand. The email did not satisfy the requirements found in any of the laws identified above. Nor did the scant 15 minutes notice of the drive-thru sit down provided to the media by telephone.

The potential for abuse under any other interpretation of the legal requirement is obvious.

The apparent and actual open meetings violations that occurred before, during, and perhaps even after the drive-thru sit down are too numerous to list. Any one of them might result in the nullification of “action taken” at the drive-thru sit down, if by chance a court were to determine that it was an otherwise legally recognized “meeting of a quorum of the members of a public agency at which public business was discussed or action was taken.”

Putting aside these open meetings violations, there is one question that cannot be ignored: Why now?

Since necessary statutory modifications, like Kentucky’s Senate Bill 150, have been made to longstanding open meetings practice to eliminate the spread of the virus at in-person meetings, public agencies have been strongly encouraged to limit their agendas to urgent public business that cannot wait. It is widely recognized that non-urgent business that can be taken up when a semblance of normality has been restored should be postponed.

The timing and choreography of the May 5 drive-thru sit down was not coincidental. It was not precipitated by an occurrence or event that necessitated immediate discussion or action by the board of directors. Indeed, there was virtually no need to call a special meeting to discuss the contract with TVA or the suspension of the superintendent other than the “personal agenda” of one or more individuals who were present.

Any purported urgency was in the minds of the board directors and former director who appeared at 7 p.m. in the plant board drive-thru. The same is true of the directors’ imaginative interpretation of the body of law that governs their conduct before, during and after a public meeting.

Creative? Yes. Legally defensible? No.

Stated simply, these electric plant board directors seem to have blown some fuses, and they may have to be replaced with new ones.

Amye Bensenhaver is a retired assistant attorney general. For 25 years, Bensenhaver focused exclusively on Kentucky’s open records and meetings laws, authoring some 2,000 legally binding decisions and providing guidance to public officials and the public about the laws. In 2019, she and former Kentucky New Era editor, Jennifer P. Brown, formed the Kentucky Open Government Coalition. She continues to write about, provide guidance on and advocate for laws securing the public’s right to know.

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