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Fighting open-meetings offenses: Short-term pain, long-term gain

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By Jim Waters
Bluegrass Institute for Public Policy Solutions

Getting sued and seeing the glass half full is an obvious oxymoron – unless the lawsuit leads to a court decision establishing judicial precedent ensconcing a more open, transparent and accountable government.

Kentucky House leaders’ determination to rebuff the attorney general’s decision that the House’s closed-door gathering this summer to discuss pension reform violated the commonwealth’s Open Meetings Act and instead take the issue to court – hence, the lawsuit against the Bluegrass Institute – brings the saga one step closer toward final rejection of using legislative maneuvers to avoid future secret meetings on politically difficult issues.

Republican House leaders are attempting to maneuver around open-meetings requirements by claiming the Aug. 29 assembly to discuss controversial recommendations released the previous day for reforming the state’s pension systems was just another one of their political caucus meetings open to the Democratic minority caucus as well.

House attorney Laura H. Hendrix responding to a complaint filed by the institute’s Center for Open Government defended the secret meeting, arguing that political caucus assemblies are “specifically exempt” from the Open Meetings Act.

This isn’t the first attempt by House leaders seeking a closed-door discussion about a politically thorny issue to claim the meetings are caucus gatherings exempt from sunshine laws.

Similar arguments were advanced by the House in 1993 when Speaker Joe Clark called members into a closed session regarding Gov. Brereton Jones’s proposed health care reform, also a highly contentious issue.

House leaders escaped further legal action that year with claims that a quorum of its members didn’t show up for the private discussion.

Otherwise, the attorney general ruled, it would have constituted an illegal meeting.

While House leaders argued this summer’s secret session was a caucus meeting, they haven’t even attempted to claim lack of an attendance quorum.

It would be fruitless to do so, since the Lexington Herald-Leader reported prior to this past summer’s pension discussion that “all House members will meet” and Louisville Democratic Rep. Jim Wayne was the only lawmaker who publicly objected to the secrecy and walked out in protest.

The attorney general’s ruling that a quorum would have made the 1993 closed-door meeting – which leaders claimed was one big happy caucus event – illegal should make the current case a legal slam dunk against even attempting such maneuvers.

Yet while the legal outcome is by no means certain, it will be fascinating to witness House attorneys attempt to portray a meeting of nearly the entire legislative body as just a political caucus meeting.

Doing so will, I anticipate, resemble an attempt to make the argument that if it looks, walks, swims and quacks like a duck, then it’s probably a cat.

Center for Open Government director Amye Bensenhaver hoped the House would simply accept and acknowledge it violated the open-meetings law instead of wasting taxpayer money by suing the Bluegrass Institute “to justify excluding the public from its meetings, which is precisely what the Open Meetings Act was designed to prevent.”

It’s telling that longtime legislators who now are House leaders are driving this doubled-down attempt to protect the body’s ability to meet behind closed doors.

Perhaps a reminder is needed that part of being a policymaker is doing the hard work of conducting open discussions about tough issues and then being accountable not just for the final vote tally but also for how those decisions are reached throughout the legislative sequence.

It’s also important for them to keep in mind that the legislature itself has imposed the same open-meetings law the House skirted on other public entities.

Getting this issue into a courtroom, argued and resolved would represent the kind of gain on behalf of citizens that would be worth the pain of the process.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.