Request By:
In Re: Maleena D. Streeval/Glenna Bryant
Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
OPEN MEETINGS DECISION
This matter comes to the Attorney General as an appeal from the written response of Ms. Glenna Bryant, Chairperson of the Casey County War Memorial Hospital Board. Ms. Maleena D. Streeval has requested that the Attorney General review Ms. Bryant's responses to her questions pertaining to a meeting of the hospital board held on October 15, 1992.
In a letter to Ms. Bryant, dated October 22, 1992, Ms. Streeval questioned the legality of the hospital board going into an executive session "to discuss an agreement with physicians." She maintained that the exception to Open Meetings set forth in KRS 61.810(1)(f) does not apply as the physicians involved are not employees of the hospital. She also said that the exception contained in KRS 61.810(1)(g) is not applicable as it pertains to industrial prospects and does not authorize the hospital board to negotiate with local physicians in a closed session.
Ms. Streeval requested that any minutes or notes taken during the closed session be made available to her. She further requested that the hospital board promise her newspaper that future discussions of this nature would take place in public and open meetings.
Ms. Bryant responded to Ms. Streeval in a letter dated October 27, 1992, and stated in part as follows:
At the time of the meeting, and in accordance with KRS 61.815(1), it was announced that the Board would go into executive session to discuss a possible agreement or relationship with various physicians, that the discussion would include information of a personal nature, and would involve the consideration of certain business opportunities which could be adversely affected by premature public disclosure. Citing the provisions of KRS 61.810(1)(f) and (g), the Board went into executive session. No final action was taken at any time during the meeting of October 15, 1992.
Ms. Bryant further stated that the hospital board is considering a proposal that would permit the board to again offer health care services; that such a proposal involves certain employment relationships; and that since the discussion focused upon specific individuals and specific proposals it was appropriate for the board to conduct its meeting in a closed session as provided by KRS 61.810.
Ms. Streeval's letter of appeal was received by the Attorney General's Office on November 19, 1992.
As part of the amendment process of the Open Meetings Act by the 1992 Regular Sessions of the General Assembly KRS 61.800 was enacted. That statute provides:
The General Assembly finds and declares that the basic policy of KRS 61.805 to 61.850 is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed.
Nobody has maintained that the hospital board is not a public agency for purposes of the Open Meetings Act but no one has set forth the statutory provisions pursuant to which the board was organized and presently exists. Thus, for purposes of this decision it is assumed that the hospital board is a public agency and subject to the terms and provisions of the Open Meetings Act. See OAG 84-46 and OAG 78-138, copies of which are enclosed.
KRS 61.810(1)(f) provides that an otherwise public meeting may be closed if it involves:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret [.]
Apparently three physicians met with the board during the closed session. While we do not know what transpired during this discussion of the possible "agreement with physicians," there is no evidence that the board was considering them as possible employees of the public hospital. It is our understanding that most physicians who practice in a particular hospital do not do so under an employer-employee relationship with the hospital. Furthermore, even if the board was considering the hiring of other specifically named persons as hospital employees the physicians, as nonboard members, had no authority to attend a closed session of the hospital board on that matter.
KRS 61.810(1)(f) was enacted for the limited and specific purpose of allowing a public agency to conduct a closed session where the appointment, discipline or dismissal of a specific person is involved. Under the facts presented KRS 61.810(1)(f) would not authorize a public agency to conduct a closed session with persons not being considered for employment with the agency or to discuss the general subject of "an agreement" with those persons.
KRS 61.810(7) formerly provided that a public agency could close a meeting if it involved, "meetings between public agencies and industrial prospects." That subsection was replaced by KRS 61.810(1)(g) which states that an otherwise public meeting can be closed if it involves:
Discussions between a public agency and a representative of a business entity and discussions concerning a specific proposal, if open discussions would jeopardize the siting, retention, expansion, or upgrading of the business.
While the statutory subsection is no longer limited to public agencies and industrial prospects, as it now covers public agencies and a business entity, it concerns the siting, retention, expansion, or upgrading of a private business entity rather than the siting, retention, expansion, or upgrading of a public agency. The services being rendered or to be rendered by a public hospital are a matter of public interest and KRS 61.810(1)(g) would not justify the closing of the meeting relative to the matters with which this decision is concerned.
In satisfying the statutory obligation imposed upon the Attorney General by KRS 61.846(2) to determine if the public agency violated the provisions of the Open Meetings Act, it is our decision that the county hospital board violated the Open Meetings Act when it invoked the provisions of KRS 61.810(1)(f) and (g) to close the meeting held on October 15, 1992.
The Casey County War Memorial Hospital Board may challenge this decision by filing an appeal with the appropriate circuit court within 30 days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848.