Request By:
Paul F. Fauri
General Counsel
Department For Human Resources
Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General concerning the application of the Kentucky Open Meetings Law, KRS 61.805 to 61.850, to the Kentucky Occupational Safety and Health Review Commission (KOSHRC), Kentucky Human Rights Commission and the Kentucky Health Facilities and Health Certificate of Need and Licensure Board. You direct our attention particularly to KOSHRC because you were recently barred from attending a meeting of the review commission where a motion you had made on behalf of the Department for Human Resources was considered and ruled on.
You present the following questions:
"Can a quasi-judicial body exclude the general public from its meetings? If so, under what authority and what procedure? Second, can a quasi-judicial body exclude a party or its representative from its meeting? By party, we mean any person cited for a violation which is to be determined by the body. If so under what authority and what procedure?"
You state that you are aware of a previous Attorney General's opinion which holds that KOSHRC is not subject to the Open Records or Meetings Laws because it is a quasi-judicial body. The opinion you refer to is OAG 78-400 dealing with the Kentucky Open Records Law, KRS 61.870 to 61.884. In that opinion we said, "we note that the review commission is a quasijudicial body which makes administrative adjudication of charges of violation of Kentucky's Occupational Safety and Health Laws found in KRS Chapter 338." We were dealing with a request from a newspaper for copies of the complaint and all other pleadings or filings of the case then pending before the Commission. Our conclusion was as follows:
"It is our opinion that the complaint and all other papers in a case before the commission are public records and subject to public inspection.
* * *
Since the file of the case before the commission is similar to the file of a case in a court, we can see no general exception which would exclude the records from public inspection. "
The definition of a "public agency" in KRS 61.805(2) excludes "judicial or quasi-judicial bodies" from the provisions of the law. Judicial bodies, of course, are the courts of the Court of Justice. A quasi-judicial body is one which makes determinations which effect substantial rights, exercises discretion, and requires notice and hearing. If any one of these elements is absent, the action is usually administrative rather than quasi-judicial. Van Pelt v. State Board for Community Colleges and Occupational Education, 557 P.2d 765, 768, 195 Col. 316.
In Kentucky a board or commission which at times performs a quasi-judicial function and at other times is performing a purely administrative function is respectively required to comply with either judicial procedures or the Open Meetings Law depending on which function it is performing.
The fact that an administrative board sometimes performs a quasi-judicial function does not give it a blanket exemption from the requirements of the Open Meetings Law. When it is conducting a fact finding hearing, upon notice to the parties, wherein it will make a decision according to its discretion, it is performing a quasi-judicial function and the hearing must be open to the public as is required of courts. Ashland Publishing Company v. Asbury, Ky., 612 S.W.2d 749 (1980). After the evidence has been received and arguments heard the commission can retire into closed session to deliberate and reach a decision. (At such time no one should be present with the commission except perhaps a secretary to take notes. Stinson v. State Board of Accountancy, Ky.App., 625 S.W.2d 589, 591 (1981).)
There are some boards and commissions which are created by statute to perform solely quasi-judicial functions. Such boards do not grant licenses, make inspections or prosecute violations but sit as a neutral fact finding and decision making panel which conducts hearings after notice to the parties. They can make rules and regulations necessary to carry on their work, hire employees and hearing officers and set their salaries, but otherwise, have no administrative duties. An example of such a board is the Worker's Compensation Board created by KRS 342.215. In the case of each board and commission it is necessary to examine a particular statute creating the board in order to determine if its duties are exclusively quasi-judicial.
An exclusively quasi-judicial board or commission does not have to comply with the Open Meetings Law but must comply with the procedures which pertains to courts. Where court hearings are open to the public, quasi-judicial hearings must be open to the public. Where court deliberations are conducted in closed session, quasi-judicial hearings may be conducted in closed session.
In regard to KOSHRC we conclude, after considering the creating statute, KRS 338.071, that KOSHRC is an exclusively quasi-judicial body. Its hearings must be open to the public when it is receiving evidence but after a hearing it may deliberate in private as a jury would. As to whether KOSHRC may deliberate in private when ruling on a motion, we are unable to say. In court a motion is usually ruled on by one judge who can keep his thoughts to himself. The review commission is made up of three members and must decide its rulings according to a majority vote. We are unable to say whether its discussion on a motion and the vote thereon should be made in private or in public. If a ruling on a motion deprives a party of due process of law he may appeal to the Franklin Circuit Court under KRS 338.091 after a final order has been made by KOSHRC.
The Kentucky Human Rights Commission is created by KRS 344.180 et seq. After considering the statutes we conclude that it has both administrative and quasi-judicial functions. It is empowered to make investigations and studies, to make reports to the Governor and the legislature, to create local or state-wide advisory agencies, and to perform many other administrative duties under KRS 344.190. It is also empowered to conduct hearings and make discretionary decisions based on evidence. KRS 344.210.
The Health Certificate of Need and Licensure Board is created by KRS 216B.025 and has both administrative and quasi-judicial functions. A decision of the board, made after a hearing, with respect to a certificate of need application, a certificate of need, or a license, may be appealed to the Franklin Circuit Court by any party. KRS 216B.115. It must comply with either the Kentucky Open Meetings Law or court procedures depending on which function it is performing.
In summary, we conclude that an administrative board sometimes becomes a quasi-judicial body by force of the function it is performing at the time and at all other times it is an administrative body subject to the Open Meetings Law; that KOSHRC is at all times a quasi-judicial body and not at any time subject to the Open Meetings Law; that the Human Rights Commission and the Health Facilities and Health Certificate of Need and Licensure Board are primarily administrative bodies which sometimes perform quasi-judicial functions and, at those times, become quasi-judicial bodies.