Request By:
Mr. Vic Hellard, Jr.
Director, Legislative
Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
In your letter to the Attorney General you state that the Superintendent of the Christian County Board of Education has appointed a committee of citizens on his own initiative and without any formal direction of the board to advise him about redistricting school boundaries. You further state that this committee wishes to have closed meetings and cites OAG 78-571 in support of that proposition. You ask whether the committee may, in fact, hold closed meetings.
KRS 61.810 states: "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by such agency, are declared to be public meetings, open to the public at all times . . .", with certain specifically enumerated exceptions. Clearly, the general policy is that meetings of public agencies are to be open to the public.
KRS 61.805(2) defines "public agency" to include:
"any state legislative, executive, administrative or advisory board, commission, committee, policy making board of an institution 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 corporation 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; . . . ."
In OAG 78-571 we opined that a committee appointed by a superintendent on his own initiative and without any formal direction of the Board (as opposed to a committee created pursuant to the direction of the Board) would not constitute a public agency. We stated:
"The Superintendent, as a public officer with statutory authority to make recommendations to the Board of Education, may make such investigation and receive such advice from citizens as he deems necessary. If the Superintendent creates a committee of his own volition and the committee is to make recommendations to the Superintendent only, which recommendations the Superintendent may or may not relay to the Board as his own recommendations, the committee would have no official standing and would not be subject to the Open Meetings Law."
You cite a recent case,
Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987), and ask that we reconsider OAG 78-571 in light of that case.
In the case, the University of Kentucky Board of Trustees created a Presidential Search Committee to screen applicants for the position of president of the university. The committee was an advisory committee and had no power of appointment. The committee argued that it was not a public agency and, therefore, was not subject to KRS 61.805 et seq., the Open Meetings Act. The Kentucky Supreme court held that the Committee was a public agency because:
". . . a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. The Board of Trustees of the University of Kentucky is created by statute -- viz., KRS 164.130, et seq. -- so that the Presidential Search Committee, which was created, in turn, by formal action of the Board of Trustees, is a public agency and therefore subject to the provisions of KRS 61.805, et seq. Any other holding would clearly thwart the intent of the law."
732 S.W.2d at 886 (emphasis added).
The superintendent is the executive agent of the board that appoints him. KRS 160.370. He has apparently exercised his executive authority in appointing this advisory committee.
Based on the holding of the Lexington Herald-Leader case, it is our opinion that the advisory committee appointed by the superintendent is subject to the Open Meetings Act since it was created by executive order. This is consistent with the intent of the Open Meetings Act as set forth in the preamble to the Act. See 732 S.W.2d at 886.
To the extent it conflicts with this Opinion, OAG 78-571 is hereby modified.