Information on Ballot Integrity Task Force (Kentucky State Board Of Elections)

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Dear Mr. Maples,

On Monday August 17, 2020, the Kentucky State Board of Elections ("SBE") received your email requesting records related to "All agendas, meeting minutes, and emails related to the task force commonly referred to as the "Ballot Integrity Task Force."

As you know, the administration of the general election scheduled by law for November 3, 2020 is being planned in the midst of the ongoing COVID-19 pandemic and the associated State of Emergency declared by Governor Beshear. Any alteration of the procedures outlining the manner of the election due to the virus must come from the statutorily prescribed methods outlined in KRS 39A.100(1)(l). By law, any change in the manner of an election must start with a letter recommending such changes, sent from the Secretary of State, to the Governor. The State Board of Elections must then promulgate administrative regulations by which to carry out the altered manner of the election. Finally, before any modification to election procedures carries the force of law, the Governor and Secretary of State must both issue executive orders approving of the regulations presented by the State Board of Elections.

As you further know, this year's primary elections were also conducted in the midst of the pandemic. The procedures described above took place and Kentucky was able to conduct a safe and secure election during a time when such a feat was no small order nationwide. Having learned from that experience, and with the coronavirus showing signs that, at best, it still will linger in November, the Commonwealth is once again forced to evaluate how an election should be conducted.

As a first and proactive step in that process, SBE Chairman Ben Chandler proposed during the July 13, 2020 meeting of the State Board of Elections that a work group be formed (what it is assumed you are referring to as the "Ballot Integrity Task Force"). 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 in the hope that the document would be taken into account by the Secretary of State as he began 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 would heed the recommendations when deciding whether to issue an executive order doing such.

It is in this framework, along with an on-point and precedential 2018 Open Meetings Decision from the office of then-Attorney General Beshear that SBE does not view the work group as a "public agency" subject to the Open Meetings and Records Acts.

In re: Nancy McKenney/ Eastern Kentucky University, 18-OMD-101, May 30, 2018, the Attorney General was asked to decide "whether the Council on Academic Affairs, Eastern Kentucky University ("Council"), violated the Open Meetings Act when it met on March 29, 2018, and voted on recommendations for suspending programs within Eastern Kentucky University ("EKU")." The Attorney General found that the Council did not violate the Open Meetings Act because the Council was not a public agency, holding 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."

The Attorney General's ruling took into account that the work done by the Council was too remote from any actual decision making as to implicate the Open Meetings Act. The Opinion noted that "the Council's functions are limited to reviewing and recommending policies affecting curriculum, academic programs, and/or academic requirements. In these matters, the Council's 'recommendations are first reviewed by the Faculty Senate. Only then are the [Council's] recommendations presented to the President of the University and the Board of Regents. Thus, only the Board of Regents has final decision making authority. Further, certain curricular and program changes require another layer of external approval from the Council on Postsecondary Education.'"

The general election workgroup is similarly removed from being able to engage in any actual decision making, as it is limited to reviewing what may or may not work for the general election and recommending policies that may affect the manner of the election. Just as the Council's recommendations had to pass up the chain multiple times before anything was to come of them, so to must any recommendation of the work group. Before anything can be changed regarding the manner of the general election, the processes of KRS 39A.100(1)(l) must play out, meaning that for anything the work group has recommended to come to fruition, it must be first vetted by the Secretary of State and Governor, then by the State Board of Elections, and then finally reviewed once more by the Secretary and Governor. These entities, like the Faculty Senate and the University Board of Regents at EKU are the true decision makers.

The Attorney General further cited 95-OMD-71 in his decision noting that there, as in the case with the Council, a President's Cabinet group which was also found not be a public agency, was "not required to be created by law or any of [the Universities'] governing documents." The Opinion found it persuasive that the Council "functions to advise the Board of Regents, and does not have the authority to take any action." The Attorney General again cited similar precedent laid out in 17-OMD-264, finding that the Western Kentucky University Budget Council was a work group and not a public agency for parallel reasons. Likewise, here, the general election work group was not created by any statute, executive order, regulation, resolution, nor any of SBE's governing documents. The work group exists (existed) to advise the Governor, Secretary of State, and State Board of Elections as they proceed down the path of KRS 39A.100(1)(l) and it does not have the authority to take any action as it relates to the manner of the general election.

Given that the election work group squarely falls in this line of decisions where work groups have been ruled to not be public agencies and not subject to Open Meetings and Open Records laws, SBE must deny your request for all of the requested items.

This response adequately and sufficiently complies with your request, the Kentucky Open Records Act, and constitutes final action by the Kentucky State Board of Elections.

Thanks,

Taylor Austin Brown
General Counsel
State Board of Elections
140 Walnut Street
Frankfort, Kentucky 40601
(502) 782-9499
TaylorA.Brown@ky.gov<mailto:TaylorA.Brown@ky.gov>

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