A new complaint alleges the chair of Kentucky’s House committee on postsecondary education violated open meetings laws last week when he attempted to conduct public business after adjourning a meeting amid a contentious debate over a bill that would end diversity initiatives in public colleges.
Republican leaders say they expect the bill to continue on its path regardless of the oversight. GOP House Speaker David Osborne of Prospect said Tuesday he wishes “somebody had caught it before it happened.”
“Not a problem with the bill,” Osborne said. “Ultimately, it just means it requires an extra step that that title amendment now is technically not on the bill, because it was not properly before the body when we adopted it.”
The tension during last week’s committee hearing was palpable as Postsecondary Education Chair Rep. James Tipton adjourned the meeting. Tipton had scheduled an hour for the discussion over House Bill 4, but gave opponents only 10 minutes to share their views before abruptly concluding the meeting.
A woman approached lawmakers after Tipton first announced the committee adjourned, and loudly reproached them for not seeking more minority voices before pursuing a bill that would eliminate all DEI efforts in Kentucky’s public colleges and universities.
Although the meeting had already adjourned, Tipton gaveled the woman down and called in Kentucky State Police officers to “clear the room.” He then repeated that the meeting was adjourned. As state police escorted the woman out and both the public and lawmakers cleared the committee room, Tipton took a quick count of lawmakers remaining and called an amendment to the bill.
“We need to do a title amendment. Do we have a motion on the title amendment?” Tipton said.
He then announced the adjournment of the hearing for what appears to be a third time. Open records experts say it is a clear violation of state law to conduct public business after a meeting is adjourned and argue any of that business is voided. That’s become the main subject of a formal complaint filed by James Orlick, a graduate student at the University of Louisville who also works in DEI grant writing.
The bill continued to move after the hearing, passing both the full state House and then through a Senate committee vote under what the complaint alleges is an invalid title. The bill, originally titled an act “relating to postsecondary institutions,” turned into one “relating to initiatives regarding diversity, equity, and inclusion.”
Republican Senate President Robert Stivers, whose chamber is currently considering the legislation, told reporters Tuesday he expects the bill to come up for a vote Wednesday, at which point they will respond to the questions raised about the title amendment.
Michael Abate, a Kentucky constitutional lawyer, said the title may not seem like a big deal, but flaws in the title — which are required in the state constitution — have led courts to throw out legislation before.
“The title is extremely important, and our Supreme Court has recently considered this,” said Abate, who also represents Louisville Public Media as a First Amendment attorney. “You cannot put provisions in a bill that are not adequately reflected in the title, and the reason is that the public has to have notice of what bills are about.”
Abate is referring to a 2022 Kentucky Supreme Court decision that unanimously threw out the sewer bill controversy, in which an innocuous “wastewater services” bill was replaced by large-scale pension reform and quickly passed through the legislature.
Abate said if a committee substitute put in place any provision that went beyond the original title of “postsecondary institutions,” that might explain the rush to add a title amendment after the committee adjourned. But he said state open meeting laws are clear:
“You can't conduct business outside of a scheduled meeting,” Abate said. “Once the meeting is adjourned, it's over.”
A committee substitute presented in that House committee hearing attached a new section. It added that state licensing authorities and boards, which are generally not part of postsecondary institutions, are not allowed to require DEI training before issuing or renewing licenses.
Abate also said there isn’t much precedent for a committee forwarding on changes in legislation that were improperly adopted, describing it as an “unusual situation.”
Amye Bensenhaver, co-founder of the Kentucky Open Government Coalition, was involved in the drafting of the complaint and said she doesn’t believe it to be a “small matter.” She argued the process should be restarted, beginning with the House committee hearing, or else the legislation could be open to more scrutiny and possibly litigation.
Speaker Osborne said he expects the mix-up to simply create “an extra step,” where the Senate adds the title amendment now and then passes the bill back to the House, where the chamber would vote to concur with the addition.
State government and politics reporting is supported in part by the Corporation for Publ.ic Broadcasting.
