Bluegrass INstitute


WATERS: Conway gets it right: State board violates open-meetings law

Jim Waters head

Attorney General Jack Conway is right: the state Board of Education violated Kentucky’s open-meetings law when an ad hoc committee it hastily created in April conducted business in unannounced, closed-session conditions while hiring a search firm to aid in finding a replacement for outgoing commissioner Terry Holliday.

State board chairman Roger Marcum indicated in a May 4 text to Bluegrass Institute staff education analyst Richard Innes that the subcommittee spent “many hours” reviewing proposals offered by search firms after Holliday’s surprise announcement – but the public was never informed.

Even with valid reasons, government agencies cannot legally go into closed session without first publicly citing the specific authorization for conducting the stated business outside public purview, followed by a motion and vote – again, in public – to go into closed session.

This subcommittee did neither, although it clearly was active because it narrowed the number of search firms to only one. The full state education board then voted to hire that firm – Asher/Greenwood & Associates, a Florida company that also recruited Holliday to Kentucky.

Since transparency is vital to holding government agencies accountable, I sent an official complaint on behalf of the Bluegrass Institute to the board in the form of a simple two-part suggestion: the board should acknowledge its error and commit to conducting a training session for its members with an Open Meetings expert from Conway’s office during a regularly scheduled, webcasted meeting.

Board attorney Kevin Brown sent me a letter flatly refusing to acquiesce to my uncontroversial plea, which led to the appeal.

Following release of Conway’s decision, the Kentucky School Boards Association (KSBA) breathlessly defended the state education establishment, hyperventilating in the headline of its statement: “KDE doesn’t believe Attorney General’s opinion impacts ongoing commissioner search process.”


However, past open-meetings violations have resulted in courts voiding contracts, including those of contractors hired to find new school leaders. It would be better for the board to comply with the ruling, perform my education remedy and put this incident in its rear-view mirror.

The KSBA irrelevantly remarked in its statement that my appeal of the department’s refusal to acknowledge its wrongdoing comes from “a frequent critic of the state Department of Education and public education in Kentucky in general,” as if a violation of open-meetings laws somehow doesn’t matter so much when called out by a “critic” of a system that routinely ranks behind many other states in its academic performance.

If the institute’s goal is to degrade the department in some way, would we make such a benign request for corrective action – the most-discomfiting part of which would be simply to acknowledge that open-meetings laws were violated?

A primary reason we included that request was to demonstrate respect for a law without which there would be frequent closed-door meetings offering increased temptation to act in ways not conducive to serving the taxpayers who pay the freight for our public-education system.

The state board’s argument throughout this challenge has been that its temporary ad hoc committee was formed for a single task and thus could ignore the open-meetings law.

That’s a weak, and ultimately losing, argument from an agency that will spend the most – $8 billion – of any state-government department in the current General Fund budget.

Perhaps state board members or their political pals in Frankfort and at the alphabet-soup agencies and organizations don’t deem the state’s education system worthy of being subject to such a high level of scrutiny – especially since it was just a “single task.”

But hiring the next leader of Kentucky’s entire public-education system happens to be one of the board’s most important tasks.

Such a task may be singular in nature but huge in consequences.

In fact, if there’s any decision that should be made with full transparency and accountability throughout the entire process, it’s this one.

Jim Waters is president of the Bluegrass Institute, Kentucky’s free-market think tank. Reach him at Read previously published columns at