This raises an interesting open meetings question. That question — a recurring one in open meetings disputes — is whether a nonmember's participation in a closed meeting constitutes "selective admission" and therefore violates the open meetings law.

In general, a public meeting is open to all at all times or closed to all, other than the agency members, where the law authorizes a closed session. In this case, the members are the trustees who serve on the University of Louisville's Board of Trustees.

The dean of the medical school and CEO of UofL Health are not, to my knowledge, trustees. Their presence potentially compromises the legality of the board's closed session.

There is a narrow exception to this long-standing interpretation of the open meetings law. The exception recognizes that an individual with unique knowledge of the matter to be discussed in a legally permissible closed session may be invited into the closed session for the purpose of sharing his or her knowledge with the members of the public agency.

The nonmember dispenses his knowledge to the members then exits the closed session.

In open meetings appeals dating back to 1977, and as recent as 2018, the attorney general has determined that "on occasion, a person who is not a member of a public agency may be invited to attend a closed session if he or she 'can contribute information or advice on the subject matter under discussion but should remain only so long as necessary to make his [or her] contribution to the discussion."

https://ag.ky.gov/orom/2018/18OMD235.doc

This long line of authority is premised on the notion that:

"When an agency goes into closed session, according to proper procedure, it may allow only persons in the closed session as long as there is a reason for their being there. A public agency may not act in an arbitrary manner in conducting a closed session and may not select some persons to attend and some to be kept out without having a reason for its actions. Section 1 of the Bill of Rights of Kentucky provides that all men are free and equal. Section 2 provides that absolute and arbitrary power over the life, liberty and property of free men exists nowhere in a Republic, not even in the largest majority. This section enjoins arbitrary action by any public agency or public official. Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). An action is "arbitrary" when it is not based on reason. A public agency should not invite certain people to be merely spectators in a closed session and at the same time bar certain other people from being spectators. For example, an agency may not bar all newspaper reporters while at the same time it allows other individuals to observe the meeting. Johnson v. Simpson, Ky., 433 S.W.2d 644 (1968).

In order to avoid arbitrariness and to conform to reasonable standards, we believe that a person who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served. If a person is a witness on a certain matter, he should leave the closed session after he has testified. In inviting non-members into a closed session, we believe that the agency has the duty to explain why such persons are invited into the closed session."

While the dean and CEO no doubt have a stake in the matter presumably discussed in closed session, this does not invest them with an enhanced right to attend a closed session of the board of trustees unless they are themselves trustees.

Absent any indication that this or any other legal justification was offered for their presence in the closed session, the board's decision to include them in the closed session may expose them to an open meetings challenge.