Request By:
Dr. Charles D. Whitlock
Coates Box 1-A
107 Coates Building
Eastern Kentucky University
Richmond, Kentucky 40475-3101
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. Clinton R. Riley, editor of The Eastern Progress, has appealed to the Attorney General your partial denial of his request to inspect certain records he believes to be in the custody of the University. The disputed documents are identified as:
All records which indicate charges and penalties by the Interfraternity and Panhellenic Councils' Disciplinary Boards against each of their individual chapter membership at Eastern Kentucky University over the past two years.
You denied Mr. Riley's request on February 26, 1992, advising him that the councils are not public agencies since they receive no public funding and are not empowered to conduct public business. Instead, you maintained that they are private organizations of university students.
Mr. Riley argues that because the councils receive public funding and are conducting business which has an impact on a state university, they must be treated as public agencies. He notes:
Both of these boards hold their meetings in state-owned facilities as well as use the publicly-funded resources of those facilities, paper, FAX machine and personnel.
In addition, these boards are advised by a state-funded employee, Mrs. Troy LeForge. LeForge, who is paid a salary of $ 28,050, is adviser and coordinator of Greek activities at Eastern. Susan Whittaker, Facilities coordinator for the student activities office, is paid $ 20,037 with state monies. Whittaker handles documents produced by this board.
Pursuant to KRS 61.880(2), this Office requested additional information and documentation to substantiate the University's position that the councils did not receive state funding. You responded to this request in a letter dated March 27, 1992, and enclosed a memorandum prepared by Eastern's Dean of Student Development, Dr. Hayward M. Daugherty. Dr. Daugherty makes the following observations:
1. The IFC and Panhellenci were formed by the individual Greek organizations when we began the Greek system to oversee and coordinate the activities of the individual fraternities and sororities. They developed their own constitution and bylaws as any other student organization does to be registered.
2. The IFC and Panhellenic do not receive any funding from the University towards their operating budget. All of the money in their budgets came from dues of individual chapters that they impose on themselves.
3. They pay for their telephone line, phone, and service.
4. They pay for all paper and copies as well as any other supplies that they use.
5. They handle all their own paperwork as it relates to the organization.
6. Mrs. Whittaker reserves rooms for them as she does for the other 220 student organizations and members of the university community. She does not do any individual typing or other support for the Greek organizations that is not extended to the university community.
7. While Mrs. LeForge advises the IFC and Panhellenic Councils Greeks she also works with other organizations and coordinates the EXCEL program.
8. The IFC and panhellenic organizations requests [sic] meeting space just like any other student organization.
Summarizing Dr. Daugherty's comments, you conclude that the University did not create the IFC and Panhellenic Councils, nor do the two organizations receive budgetary support from the University.
Mr. Riley asks that we review your response to determine if the University's actions were consistent with the Open Records Law. For the reasons set forth below, it is our opinion that you properly denied Mr. Riley's request.
OPINION OF THE ATTORNEY GENERAL
KRS 61.870 (1) defines a "public agency" as:
[E] very state or local officer, state department, division, bureau, board, commission and authority; every legislative board, commission, committee and officer; every county and city governing body, council, school district board, special district board, municipal corporation, court or judicial agency, and any board, department, commission, committee, subcommittee, ad hoc committee, council or agency thereof; and any other body which is created by state or local authority in any branch of government or which derives at least twenty-five (25%) of its funds from state or local authority.
It is immediately apparent that the Interfraternity and Panhellenic Councils may be deemed "public agencies" for purposes of the Open Records Act, only if they derive at least 25% of their funds from state or local authority. As both you and Dr. Daugherty note, the councils were established by Eastern's fraternities and soroities at the inception of the Greek system, to oversee and coordinate their activities. Although they are registered with the University, like any other campus organization, they were not "created" by it nor are they an "agency" of it. The remaining question is, therefore, from whence do the councils derive their funding.
The Interfraternity and Panhellenic Councils do not receive any funding from the University. Instead, their budgets consist of dues allocated by the individual chapters. Moreover, they do not receive support from the University in the form of supplies, phone service, or photocopying equipment. In a conversation with the undersigned on April 3, 1992, Dr. Daugherty explained that the councils maintain an agency account with the University, and that funds for any expenses they incur, whether for use of copying equipment, the telephone, or other supplies, are withdrawn from those accounts. Accordingly, they are entirely self-supporting.
Mr. Riley argues that because the councils conduct their meetings in University facilities, and avail themselves of the services of its Coordinator of Student Services and Facilities Coordinator, they must be treated as public agencies. However, KRS 61.870 (1) refers to "funds" derived from state or local authority. This Office has previously recognized that words used in statutes must be defined in accordance with common and everyday meanings. KRS 446.015; OAG 89-92. In our view, the term "funds" refers to a sum or sums of money. While it is true that the Interfraternity and Panhellenic Councils derive an appreciable benefit from the University in the forms Mr. Riley suggests, this benefit cannot be quantified, or otherwise translated into a monetary figure. Moreover, every other campus organization may avail itself of these benefits. Assuming for the sake of argument, that these benefits could be equated with "funding, " it would be necessary to determine what percentage is solely devoted to the Interfraternity and Panhellenic Councils. It is the opinion of this Office that any attempt to arrive at a fixed dollar amount based on such a percentage is too speculative.
In OAG 84-382, we dealt with a similar issue. There we concluded that the Kentucky Educational Foundation, Inc., could not be deemed a public agency within the meaning of KRS 61.870, although it received assistance from the State Department of Education in the form of expenditure of funds for meeting rooms and refreshments, as well as the use of Department personnel for foundation activities. We held that the Foundation was primarily a nonstock, nonprofit corporation utilizing powers conferred by KRS Chapter 273, and that it did not derive 25% of its funds from state or local authority. cf. OAG 90-59; OAG 90-63. We believe that the reasoning of that opinion can be extended to the present appeal. Accordingly, it is our opinion that you properly advised Mr. Riley that the Interfraternity and Panhellenic Councils are not public agencies within the meaning of KRS 61.870, et seq.
Mr. Riley also asks that we issue an opinion on the applicability of the Open Meetings Law to the councils. Inasmuch as the definition of a "public agency" under the Open Meetings Law is narrower than its definition of a "public agency" under the Open Records Law, excluding bodies "which derive[] at least twenty-five percent (25%) of [their] funds from state or local authority, " we believe that the councils are not public agencies within the meaning of, or subject to, the Open Meetings Law. OAG 81-2.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Clinton R. Riley. Mr. Riley may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).