Request By:
Mr. Robert L. Gilmore
Assistant to the Principal
Lexington Catholic High School
2250 Clays Mill Road
Lexington, Kentucky 40503
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General as to whether the meetings of the Board of Control of the Kentucky High School Atheletic Association are subject to the requirements of the Kentucky Open Meetings Law. KRS 61.805 to KRS 61.850.
The question you ask is rather involved and will require a lengthly answer.
The character of the Kentucky High School Atheletic Association was described in a recent case in the
Court of Appeals of Kentucky, Kentucky High School Atheletic Association v. Hopkins County Board of Education, Ky.App., 552 S.W.2d 685 (1977). The Court said:
"The Association is a voluntary unincorporated association composed of accredited secondary schools in the state of Kentucky. The Association has approximately 350 public, parochial, and private school members, including Madisonville-North Hopkins High School. By its membership in the association, the School has voluntarily agreed to the constitution, bylaws and rules of the Association."
Generally a private association is not a public agency and is therefore not subject to the Open Meetings law. However, the nature and history of the Association in question, we think, makes it an exception to the general rule. In the case of Alston v. Kentucky High School Athelectic Association in the United States District Court in 1971 it was held that the Association is a de facto instrumentality of the State Board of Education. In Judge Swinford's decree in that case he said that the State Board of Education under the authority of statute, KRS 156.070, has the management and control of the common schools, and: "It is the judgment of the Court that this responsibility and control cannot be avoided or relegated to the Kentucky High School Atheletic Association and that the Board is accountable" for the operation of the Association.
The Constitution of the Kentucky High School Atheletic Association provides that the officers shall be a Commissioner and a Board of Control composed of ten members. Article IV. It is further provided that the members of the Board of Control shall be elected by vote of the principals of member schools and that they shall be full time certified employes of a Bord of Education. Article IV, Section 3.(d) provides as follows:
"The Board of Control shall:
1. Have general supervision of the affairs of the Association, deciding all questions and performing all duties not provided for in the Constitution.
2. Establish the Office of the Commissioner.
3. Employ assistants in the Commissioner's Office in numbers deemed necessary and at salaries comparable to their duties.
4. Hold regular meetings on the second Friday and Saturday of July, October, December, and February; during the State Basketball Tournament and during K.E.A.
5. Be empowered to transact its business when a majority of its members shall be present at a meeting. This shall constitute a forum.
6. Have authority to publish an Association magazine.
7. Have authority, upon petition and for cause shown, to reinstate any student who has been debarred.
8. Have authority to establish tournaments and meets in all sports, and to adopt regulations for these tournaments and meets. However, neither the Commissioner nor the Board of Control shall have the authority to assess receipts of district and/or regional tournaments in all sports including football playoffs other than the final championship game or tournament for each classification.
9. Have authority to amend the playing rules for any sport sponsored by the Association.
10. Have authority, as trustees, to purchase or otherwise acquire real property, and to sell, exchange, lease, mortgage, or in any manner dispose of any real property upon such terms and for such considerations as the trustees consider proper."
The above stated provisions of the Constitution show that the Board of Control has full power over the operation of the Association. In controlling the affairs of the Association the Board of Control is in fact an arm of the State Board of Education, a public agency created by statute. KRS 61.805(2), the Kentucky Open Meeting Law, defines a public agency as follows:
"(2) "Public agency" means any state legislative, executive, administrative or advisory board, commission, committee, policy making board of an instution of education or other state agency which is created by or pursuant to statute or executive order, (other than judicial or quasi-judicial bodies): any county, city, school district, special purpose district boards, public commissions, councils, offices or other municipal corporations or political subdivision of the state; any committee, ad hoc committee, subcommittee, subagency or advisory body of a public agency which is created by or pursuant to statute, executive order, local ordinance or resolution or other legislative act, including but not limited to planning commissions, library or park boards and other boards, commissions and agencies."
There are at least two ways in which we think a definition of a public agency in the above stated statute applies to the Board of Control: (1) it is a policy making board of an instution of education or other state agency, (2) it is a committee, subcommittee or subagency of a public agency which is created by or pursuant to statute.
It is therefore the opinion of the Attorney General that the regular and special meetings of the Board of Control of the Kentucky High School Atheletic Association shall be open to the public unless properly closed according to KRS 61.810 - 61.815.