October 1, 2020

theliverpoolactorsstudio

The Legal System

State Board of Elections ignores open government laws with election “task force”

6 min read

Not long ago my attention was drawn to a series of tweets by a former supervisor/colleague, Deputy Attorney General Pierce Whites.

The tweets referenced attorney Anna Whites, Pierce’s wife, whose practice includes election law.

In his tweet, Pierce mentioned a “task force” or “work group“ formed by State Board of Elections chairman, Ben Chandler, to advise the board on issues relating to the upcoming election.

The “work group,” it seemed, had met or was meeting behind closed doors, apparently oblivious to any open meetings issues this might raise.

The Whites recognized the problem, but the board and its “work group“ did not.

Naturally concerned, the Whites and I submitted an open records request to the board for records mandated by the open meetings law (a regular meeting schedule, special meeting notices, minutes), and some not mandated but nevertheless regularly maintained – materials referenced by the “work group,” audio or video recordings, communications with/between members, written recommendations, and the like.

We received a written response that was remarkable for its hasty turnaround if not the persuasiveness of its legal analysis.

Confirming our suspicions, the board advised us:

“It is [the board’s] position that the work group you are referencing is not a ‘public agency,’ as defined and subject to, Kentucky’s Open Meetings and Open Records statutes.”

Board attorney Taylor Brown explained:

“Chairman Ben Chandler proposed during the July 13, 2020 meeting of the State Board of Elections that a work group be formed. No express instructions were given to the work group, but it was implied that the group would discuss what had worked and what had not worked for the primary and apply those thoughts into preparations for the KRS 39A.100(1)(l) process. Outside of naming Secretary of State Michael Adams, Chairman Chandler did not name anyone to what he specifically referred to as a work group. Chairman Chandler also did not charge the work group with any specific tasks, give it instructions to ever report back to SBE, or achieve any goal.

“Later that month, individuals from SBE, the Secretary of State’s office, the Governor’s office, and several of the state’s County Clerks met to discuss what had worked for the primary and what may or may not work for the general election. A short time later, the work group met again and discussed the same issues further. Following this second meeting, SBE Executive Director Jared Dearing, a participant in the work group, produced a document containing preliminary recommendations expressing the work group’s opinion on the manner in which a safe and successful general election might be conducted. This document was circulated to members and employees of the State Board of Elections, the Secretary of State’s office, and the Governor’s office.

“As of the date of this letter, no response to this document is known. It is hoped that the document will be taken into account by the Secretary of State as he begins the KRS 39A.100(1)(l) process of drafting a letter recommending that the Governor alter the manner of the general election and that the Governor will heed the recommendations when deciding whether to issue an executive order doing such. Further, it is hoped that the State Board of Elections will review the work group’s recommendations when and if it is tasked with promulgating any administrative regulations to alter the manner of the election. Finally, it is hoped that both the Governor and Secretary of State will once again remember the recommendations of the work group as they issue respective executive orders approving any regulations SBE promulgates.”

This, of course, is the classic undersell — all very informal, you see, but culminating in recommendations that the board hopes the Secretary of State will “take into account,” and the Governor “will heed,” in finalizing the “manner” in which Kentucky will conduct the general election.

The “work group,” consisting of elected and appointed officials who heeded an unissued call and somehow surmised — without being told — what they were expected to do, met at least twice to do it, and produced a document detailing its advise/recommendations that was circulated to nearly everyone, it seems — except Kentucky’s voters.

What possible interest might voters have, after all?

The answer to that question lies in the statement of legislative policy that introduces Kentucky’s open meetings law: “[T]he formation of public policy is public business and shall not be conducted in secret.”

It is not just the end result or policy itself — here the “manner” in which we will exercise our fundamental right to vote during a time of unprecedented challenges — but how that particular “manner” of voting was recommended over an (ostensibly) less desirable/successful “manner” of voting.

What concerns were expressed by county clerks? The Secretary of State? The Governor? Who supported/opposed what?

How were the final recommendations ultimately hammered out?

This much we know. The open records and open meetings laws contain expansive, albeit slightly different, definitions of the term “public agency.” Both define the term as “[a]ny board, commission, *committee, subcommittee, as hoc committee*, council, or agency . . . established, created, and controlled by a public agency.”

Call it what you will — task force, work group, informal advisory body — the open records and open meetings laws govern its records and meetings. “Any other holding,” the Kentucky Supreme Court concluded in 1987, “would clearly thwart the intent of the law.” (This subpart of the multipart definitions of “public agency” is not the only subpart of the definitions of the term that in all likelihood applies to the “work group.”)

Adding insult to injury, the board cited an open meetings decision issued by the attorney general in 2018 that stands as a monument to embarrassingly bad legal analysis.

Ignoring the statutory definition of the term “public agency,” subordinating caselaw to an advisory opinion ill-advisedly issued in contravention of office policy, and upending years of interpretation, the attorney general decided that “if a committee without authority to take action ‘is not grounded in statute, executive order, regulation or resolution of any kind,’ then that committee is not a public agency and therefore is not subject to the Open Meetings Act.”

In so holding, the attorney general affirmed the very arguments the Kentucky Supreme Court expressly rejected in 1987, to wit: that it was “not a legislatively created body and [that] it was an advisory body only, without power to affect policy.”

Thus, the attorney general created the potential for the very abuse the board seeks to defend: Government by secret committee.

Sadly, the 2018 open meetings decision was not appealed to the circuit court.

Even more sadly, the State Board of Elections bought into the decision’s fallacious reasoning to defend its highly questionable position.

Perhaps most sadly, the State Board of Elections never even considered that the formation of a “work group” to make recommendations for the general election triggered the requirements of the open meetings and open records laws.

The State Board of Elections never even considered that the formation of a “work group” to make recommendations for the general election triggered the requirements of the open meetings and open records laws.Click To Tweet

“The right of the public to be informed,” the Supreme Court declared in 1987, “transcends any loss of efficiency.” That right is clearly not high on the board’s agenda.

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