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 Bell County Middle School Parent-Teacher Organization is a public agency for purposes of the Open Meetings Act, and whether its failure to comply with the requirements for conducting a special meeting at its August 23, 1999, meeting constituted a violation of the Act. For the reasons that follow, we find that the Parent-Teacher Organization is not a public agency as defined in KRS 61.805(2), and that it cannot be said to have violated the Open Meetings Act at its August 23 meeting.
On September 13, 1999, Sheila Shepherd submitted a written complaint to Bruce Thompson, principal of Bell County Middle School, in which she alleged that the Parent-Teacher Organization violated KRS 61.823 by failing to provide written notice to the media of its August 23 meeting at least twenty-four hours before the meeting occurred, and by failing to post written notice in a conspicuous place in the building where the meeting was to take place, and the building which houses the Parent-Teacher Organization's headquarters at least twenty-four hours before the meeting occurred. As a means of remedying the alleged violation, Ms. Shepherd proposed that the election of the LPC members, which took place at the meeting, be voided and new elections held.
In an undated response, Thompson asserted that because the Parent-Teacher Organization is not a public agency, it is not bound by the requirements of the Open Meetings Act. He explained:
The Bell County Middle School P.T.O. is a loose organization of parents, teachers, and all individuals who are interested in the students of Bell County Middle School? The BCMS P.T.O. has no legal standing or legal position with the school or the Bell County Board of Education. The BCMS P.T.O. role is a supportive entity of the students and teachers of BCMS. Traditionally, the BCMS P.T.O. has concerned itself with improving the funds available to students at BCMS, thus enabling them to go on field trips or helping to make the school safer with the "Help-Line" that the P.T.O. paid for last year.
Mr. Thompson indicated that the members of the P.T.O. elect their officers and "are responsible for any actions taken" by the organization. In closing, he noted that it is the policy of the Bell County Middle School Parent-Teacher Organization to provide advance notice of its meetings, and to encourage public attendance and participation. In his view, however, the Parent-Teacher Organization is not a public agency, and "no laws were violated." Shortly after receiving this response, Ms. Shepherd initiated an open meetings appeal challenging the Parent-Teacher Organization's failure to provide adequate notice.
In a supplemental response directed to this office, Bell County School Board Attorney Robert B. Bowling elaborated on the views expressed by Mr. Thompson. Mr. Bowling stated:
The Bell County Middle School Parent-Teacher Organization is not a public agency pursuant to KRS 61.805(2) and therefore is not subject to the Provisions of Open Meetings of Public Agencies in KRS 61.800, et seq. The BCMSPTO was not created pursuant to any statute, ordinance or executive order nor is it incorporated or created by the Bell County Board of Education.
Relying on a series of early open meetings decisions, he maintained that the Parent-Teacher Organization "is simply a group of parents, individuals and teachers who meet to discuss the education of Middle School students." Nevertheless, Mr. Bowling noted, the Parent-Teacher Organization provides notice of the time and place of its meetings in the local newspaper. He enclosed a copy of the notice of the August 23 meeting to substantiate this statement. We find these arguments to be persuasive, and conclude that the Bell County Middle School Parent-Teacher Organization 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 policymaking 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 recognized that an entity which has "no formal authorization, no formal membership, no formal agenda or minutes, ? [takes] no formal action, [makes] no formal recommendations, and [does] not meet as the result of any action of any public agency" is not a public agency within the scope and meaning of the Act. 96-OMD-174, p. 3; see also 98-OMD-174 (Jefferson County Medical Society, a group comprised of private physicians, is not a public agency as defined in KRS 61.805(2)). It is immediately apparent that the Parent-Teacher Organization cannot be characterized as a public agency as defined in KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (h). 1 The only definitional section under which it even arguably falls is KRS 61.805(2)(g), relating to:
any board, commission, subcommittee, ad hoc committee, advisory committee, council, for agency, ? established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection[.]
In construing this provision, the Attorney General has opined that unless an entity is comprised of "a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific mattersentrusted to it, "it is not a public agency within the scope of this definition. The written record before us demonstrates that the Parent-Teacher Organization was neither established nor created by the Bell County Middle School, or any other public agency defined in KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (h). Nor does it appear that the Middle School, or any other recognized public agency, exercises control over it. It has no official charter, and no specific matters are entrusted to it. Although public employees, namely teachers and administrators, may participate in its activities, its officers are elected by its members, and its members determine its mission and mandate. Compare, 98-OMD-96 (sign committee established by city to draft a new ordinance is a public agency for purposes of the Open Meetings Act) .
In contrast, a school-based decision making council is a public agency by statute, and is charged with "the responsibility to set school policy consistent with district board policy . . . [to] provide an environment to enhance the students' achievement and help the school meet the goals established by KRS 158.645 and 158.6451." KRS 160.345(2)(c). Its meetings are declared by statute to be open to the public under the Open Meetings Act. KRS 160.345(2)(e). The only references to parent-teacher organizations which appear in the Kentucky Revised Statutes are found at KRS 160.352, relating to appointment of a representative to serve on a screening committee created for the purpose of making recommendations for school superintendents, and KRS 139.497, relating to the sales tax exemption for school affiliated groups and organizations. Neither statute establishes, or reposes authority on, parent-teacher organizations. The overwhelming weight of legal authority supports the position which the Bell County Middle School Parent-Teacher Organization takes.
It follows that the Parent-Teacher Organization is not a public agency for purposes of the Open Meetings Act. We proceed no further in our analysis. Because the Bell County Middle School Parent-Teacher Organization cannot be properly characterized as a public agency, it is not bound by the specific legal requirements of the Open Meetings Act in the conduct of its meetings. Nevertheless, Mr. Thompson indicates that the Parent-Teacher Organization at Bell County Middle School encourages public participation in its meetings by notifying the media in advance of those meetings. We urge the organization to continue to work toward the goal of compliance with the spirit, if not the letter, 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 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), 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.
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