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 Jefferson County Medical Society's Emergency Medical Services Committee is a public agency for purposes of the Open Meetings Act, and its meetings are subject to the requirements found in the Act. For the reasons that follow, we find that neither JCMS nor its Emergency Medical Services Committee is a public agency as defined in KRS 61.805(2), and neither is bound by the requirements of the Act.
The complainant, Jay Reeves, argues that because the Committee oversees the Jefferson County ambulance diversion plan in accordance with 902 KAR Section 14:080, and three of its voting members are public agency employees, its meetings "should be open to the public." Counsel for JCMS, Charles J. Cronan IV, responds that JCMS "is a private, not-for-profit, professional association whose regular membership is comprised exclusively of physicians." He notes that it receives no funding, staffing, support, or direction from any federal, state, or local agency. With respect to Mr. Reeves's allegation that the Committee oversees the ambulance diversion plan, Mr. Cronan observes:
Nowhere in the regulation is there any reference to the Jefferson County Medical Society or to the functions of its Emergency Medical Services Committee. The Cabinet for Health Services has neither attempted to nor has it delegated any of its licensing or regulatory responsibilities to the Jefferson County Medical Society or its EMS Committee. Neither the Jefferson County Medical Society nor the members of the committee are required to, nor do they purport to, hold their meetings "in accordance with 902 KAR 14:080." . . . The committee is purely the function of a private, not-for-profit, professional association.
In response to Mr. Reeves's comment that three of the Committee's members are public agency employees, Mr. Cronan remarks that these individuals "are not fulfilling any legal obligation or requirement imposed by state law or regulation. " Rather, he notes, "they do so as volunteers, just as the physician members of the Jefferson County Medical Society also volunteer their time to serve on the committee." While there is, Mr. Cronan acknowledges, an official body created by KRS 211.952(5), and designated the "Kentucky Emergency Medical Services Council," which possesses the regulatory authority which Mr. Reeves imputes to JCMS," JCMS is wholly unrelated to that Council." We find JCMS's arguments persuasive, and conclude that it is not a public agency for purposes of the Open Meetings Act.
The term "public agency" is expansively defined at KRS 61.805(2) to include:
(a) Every state or local government board, commission, and authority;
(b) Every state or local legislative board, commission, and committee;
(c) Every county and city governing body, council, school board, special district board, and municipal corporation;
(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency, " a state or local officer, or any combination thereof;
(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection[.]
Despite the expansive language of this provision, and the clearly expressed legislative intent that the law is to be strictly construed so as to avoid unauthorized secret meetings of public agencies, the Attorney General has repeatedly recognized that a private, not-for-profit corporation is not a public agency within the scope and meaning of the Act. For example, in 96-OMD-180, this office held that Seven Counties Services, Inc., a private, not-for-profit corporation which provides mental health and mental retardation services, was not a public agency subject to the terms and provisions of the Open Records Act. See also, OAG 75-402 (community mental health board established by a not-for-profit corporation is not a public agency) ; OAG 78-395 (county water association that was established as a not-for-profit corporation is not a public agency) ; OAG 79-560 (rural electric cooperative, formed pursuant to KRS Chapter 279 as a not-for-profit corporation, is not subject to the Open Meetings Act) ; OAG 81-266 (county hospital foundation, incorporated as a not-for-profit corporation under KRS Chapter 273 for the purpose of local approval of loans for small businesses is not subject to the Open Meetings Act) ; and OAG 84-237 (holding that private, not-for-profit corporation formed under KRS Chapter 273 for the purpose of local approval of loans for small businesses is not subject to the Open Meetings Act) . Thus, the overwhelming weight of authority supports the position which the Jefferson County Medical Society takes.
It follows that a committee of the Jefferson County Medical Society is not a public agency for purposes of the Open Meetings Act. We proceed no further in our analysis. Because the Jefferson County Medical Society cannot be properly characterized as a public agency within the meaning of KRS 61.805(2)(a) through (h), its Emergency Medical Services Committee cannot be properly characterized as a public agency. Neither the association, nor its committee, is subject to the terms and provisions of the Open Meetings Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a) and KRS 61.848 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.