February 24th, 2021 by Special Guest Columnist Amye Bensenhaver of the Kentucky Open Government Coalition

The Kentucky Open Government Coalition has made no secret of its objections to the secrecy of the Kentucky Impeachment Committee.

Our objections were both philosophical and legal.

We have acknowledged, on more than one occasion, that the open meetings law may have provided legal cover for the committee’s election to conduct at least 90% of the public’s business behind closed doors. KRS 61.810(1)(i) permits “committees other than standing committees of the General Assembly” to conduct closed session discussions. The Impeachment Committee is a special committee of the General Assembly and ostensibly qualifies under this exception to conduct closed sessions.

But the special committee of the General Assembly did not rely on KRS 61.810(1)(i), or any other exception to the open meetings law enacted by the General Assembly for all state and local agencies, including itself. At its most basic level, that law recognizes that “the formation of public policy is public business and shall not be conducted in secrecy.”

The committee proudly proclaimed that its proceedings represented “a major change,” and would not be conducted “behind closed doors.” But within the first seven minutes of its inaugural January 13 meeting, the committee abandoned this pretense and retired to closed session.

Business (in the shadows and without legal justification) as usual.

The committee held no less than 16 hours of closed session discussions in the weeks that followed, culminating in a 4.5 hour long closed session on its final night. It emerged from that closed session to conduct a public vote in what, for the public, was a legal and factual vacuum. In the absence of any statutory justification, these closed sessions violated the open meetings law, KRS 61.815(1). This is the legal basis for our objections.

Our philosophical objections are based on the committee’s overt disregard for the principles that support the open meetings law. The committee regularly demonstrated its disregard for the law, and the law’s foundational principles, by opting for secrecy in the discharge of its “solemn duty.” “The people, in delegating authority,” the General Assembly declared in the preamble to the 1974 law, “do not give their public servants the right to decide what is good for them to know.”

The committee decided what was good for us to know and, as it turned out, that was very little.

When all was said and done, we learned why two University of Kentucky law professors agreed that a legislator could not be impeached, why Representative Angie Hatton voluntarily recused herself, and why Representative Ed Massey refused to recuse himself.

At the conclusion of 11 “public” meetings, we knew little else.

We will, no doubt, learn more when we examine the reports prepared by the committee in which they recommend to the Committee on Committees that no further action be taken against Governor Beshear and Attorney General Cameron.

But the “formation of public policy,” the “uncensored truth” about how these recommendations were hammered out, will forever remain a secret. Our statutory right to know has been abridged.

From both a legal and a philosophical perspective, this is deeply offensive.

Amye Bensenhaver is one of the foremost advocates for Open Government in Kentucky.