Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky High School Athletic Association violated the Open Meetings Act at a meeting held on May 7, 1998, from which the public was excluded. The KHSAA maintains that it is not a public agency for purposes of the Open Meetings Act, and that it therefore cannot be said to have violated the Act in excluding the public from this meeting. We disagree.
On May 7, 1998, News-Enterprise reporter Martin Hepner was asked to leave a meeting conducted by KHSAA Regional Tournament Manager David Rogers, and closed to the public. On May 8, Mr. Hepner submitted a written complaint to KHSAA Commissioner Louis Stout, alleging various violations of the Open Meetings Act, and proposing that the body reconvene in open session to discuss the matters dealt with in the May 7 meeting. Having received no response to his complaint, Mr. Hepner initiated this open meetings appeal.
In a letter to this office dated May 20, 1998, KHSAA attorney Danny C. Reeves explained the Association's position. He maintained that the KHSAA "is not a public agency and is not legally bound by the provisions of the Open Meetings Act. " In support of this position, Mr. Reeves cited OAG 78-583, in which this office held that because the KHSAA is an independent body and not a state agency, there is no statutory or constitutional incompatibility between the office of assistant commissioner of the KHSAA and membership on a county board of education, and OAG 90-27, affirming OAG 78-583 in the context of the purchase of property by the KHSAA. As to the origins of the KHSAA and the manner in which it is governed, Mr. Reeves explained:
In 1917, the principals of several schools organized the Kentucky High School Athletic Association for the purpose of regulating athletic contests in which those schools chose to participate. The KHSAA has remained a voluntary, unincorporated association of public, private and parochial schools since that time.
The rules and regulations of the KHSAA are made by representatives selected by local board appointed representatives. General control is lodged with a Board of Control. Article IV of the KHSAA's Constitution sets forth the number of Board of Control members (currently 16) as well as the manner of their selection. As outlined in this Article, four of the Board's 16 members are appointed by the Kentucky Board of Education. The Board of Control selects a commissioner to administer the various programs of the Association. Louis Stout is the current Commissioner of the Association.
Based on these observations, Mr. Reeves concluded:
The KHSAA is not a state agency and, therefore, does not fit within any of the definitions of a "public agency" set forth in KRS 61.805(2)(a), (b), (c) or (h). Likewise, because the KHSAA was not created by or pursuant to any state or local statute, executive order, ordinance, resolution or legislative act or by any public agency, it does not meet the definitions set forth in subsections (d), (e) or (g).
Finally, . . . the Board of Control of the KHSAA is comprised of 16 individuals. Under Article IV, Section 2 of its Constitution, four at-large members of the Board of Control are appointed by the Kentucky Board of Education. Therefore, a majority of the KHSAA's governing body is not appointed by a "public agency. " Accordingly, it does not meet the definition of a public agency set forth in KRS 61.805(f) [sic].
Nevertheless, Mr. Reeves noted, no action was taken at the May 7 meeting, which was held to discuss changes to the tournament draw, and the tournament seedings and pairings remained the same.
We do not find the opinions cited by Mr. Reeves to be dispositive of the open meetings issue before us. Instead, we are guided by OAG 78-191 in which this office held that the meetings and records of the KHSAA are governed by the Kentucky Open Meetings and Open Records Act. In that opinion, we acknowledge that the KHSAA is a "voluntary unincorporated association composed of accredited secondary schools," and that "generally a private association is not a public agency" for purposes of the Open Meetings Act. OAG 78-191, p. 1 and p. 2. Nevertheless, we held that "the nature and history of the Association in question . . . make it an exception to the general rule." OAG 78-191, p. 2. Our review of the creation, composition, and control of the KHSAA led us to conclude that "it is a policy making board of an institution of education or other state agency, [and] it is a committee, subcommittee or subagency of a public agency which is created by or pursuant to statute." OAG 78-191, p. 4. We confirmed this view in a letter to Billy V. Wise, then Commissioner of the KHSAA, dated May 12, 1992. We see no reason to depart from that view today.
Although the KHSAA was originally created as a private, voluntary, unincorporated association, it assumed a public character as a policy making board of an institution of education when, pursuant to KRS 156.070(2) and 702 KAR 7:065 Section 1, it was designated by the Kentucky Board of Education as the agency responsible for managing interscholastic athletics in the schools. As the Board of Education's agent, KHSAA is subject to extensive Board oversight and financial accounting requirements. See, e.g., KRS 156.070(2) (requiring Board approval of its rules, regulations, and bylaws); 702 KAR 7:065 Section 3 (requiring submission of various financial accounting documents to the Board). Charged with the duty "to manage interscholastic activities at the high school level in the common schools," 702 KAR 7:065 Section 1, and authorized to promulgate administrative regulations, KRS 156.070(2), the KHSAA performs a public function, prompting the United States District Court to declare it "a de facto instrumentality of the State Board of Education." OAG 78-191, p. 2, citing Alston v. Kentucky High School Athletic Association (citation unavailable). The expansive definition of public agency found at KRS 61.805(2), coupled with the statement of policy found at KRS 61.800, indicate a legislative intent to facilitate the broadest possible access to meetings at which public business is discussed or acted upon. KRS 61.805(2) must be construed with a view to carry out the intent of the General Assembly, and there is "no reasonable basis for excluding [the KHSAA] from the definition of a public agency. " Frankfort Publishing Co., Inc. v. Kentucky State University, Ky., 834 S.W.2d 681, 682 (1992). Clearly, the KHSAA is a "public agency" within the meaning of KRS 61.805(2)(d) and (g), and its meetings are governed by KRS 61.805 to 61.850. Further, we believe that it is a public agency within the meaning of KRS 61.805(2)(h) as an "interagency body of two (2) or more public agencies" since all of its members are public agencies with the exception of the private and parochial schools which participate.
With these observations in mind, we find that the KHSAA violated the Open Meetings Act by conducting a meeting on May 7, 1998, from which the public was excluded. KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or any action is taken by the agency, shall be public meetings, open to the public at all times. . . ." A meeting is defined as "all gatherings of any kind, regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " KRS 61.805(1). "The express purpose of the Open Meetings Act, " the Kentucky Supreme Court recently noted, "is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good." Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 923 (1997).
The KHSAA violated KRS 61.823 by failing to give proper notice of its May 7 special meeting, and KRS 61.810(1) by excluding members of the public from that meeting. The fact that no action was taken at the meeting does not alter our conclusion. KRS 61.810(1) requires that any meeting at which public business is discussed or action is taken must be open to the public. We attach significance to the use of the disjunctive particle "or," rather that the conjunction "and." Since a quorum of the members of the KHSAA was apparently present and public business was discussed, the Association violated the Open Meetings Act by failing to notify the public about the meeting, and by excluding the public from that meeting. Because we find that the meeting was improperly convened, we do not address the propriety of its failure to comply with KRS 61.815, relative to the requirements for conducting a closed session.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.