Request By:
Mary Ann Tobin
State Representative
18th District
U.S. 60
Irvington, Kentucky 40146
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested our opinion as to whether the Breckinridge County Memorial Hospital Board is subject to the Kentucky Open Meetings Law, KRS 61.805 to 61.850. You state:
"The Breckinridge County Memorial Hospital was built with funds from a tax levy. The county fiscal court pays for improvements to the hospital. It is presently leased to a non-profit corporation which operates the hospital. The board members are appointed by the fiscal court. The meetings of the board are closed to the public."
It has consistently been the opinion of this office that a non-profit corporation is not a public agency as defined in the Open Meetings Law, KRS 61.805. We first discussed this question in OAG 75-402 (copy enclosed). If the hospital board were created by an ordinance of the fiscal court instead of being incorporated under KRS Chapter 273 our answer would be different, but the mere fact that the fiscal court is designated by the Articles of Incorporation to appoint the members of the board of directors of the corporation does not constitute the board as a public agency. A recent decision of the
Kentucky Court of Appeals, Courier Journal v. University of Louisville Board of Trustees, Ky. App. 596 S.W.2d 374 (1980), held that the University of Louisville Foundation, a non-profit corporation was not a public agency and was not subject to the Open Meetings Law except for the fact that all of the members of the Board of Trustees of the University of Louisville were also members of the Board of the University of Louisville Foundation, Inc. The Court held that the meetings of the foundation would have to be open to the public as long as a quorum of the University of Louisville Board of Trustees was present at the meeting.
It should be noted that there is a difference between the definition of a public agency as found in the Open Meetings Law, KRS 61.805, and the Open Records Law, KRS 61.870. The Open Records Law includes:
"Any other body which is created by state or local authority in any branch of government or which derives at least twenty-five percent of its funds from state or local authority. "
The Open Meetings Law makes no reference as to funding in its definition of a public agency subject to the law.
In summary, it is our opinion that the non-profit corporation which operates the Breckinridge County Memorial Hospital is not required to comply with the Open Meetings Law.