Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky Department of Education violated the Open Meetings Act by excluding the public from a June 15, 2000, meeting of seven KDE employees, four contractor representatives, and one employee of the Office of Education Accountability conducted for the purpose of "implementing the assessment program for elementary and secondary schools in Kentucky." For the reasons that follow, and based on the authorities cited, we conclude that although the body that gathered on that date complied with many of the particulars of the Open Meetings Act, it was not statutorily bound to do so inasmuch as it is not a public agency within the scope and meaning of KRS 61.805(2)(a) through (h).
On June 20, 2000, Cindy Rausch submitted a written complaint to Kevin M. Noland, Interim Commissioner of the Department of Education, in which she alleged that she was improperly excluded from the June 15 meeting of KDE staff and contractor representatives. It was her position that none of the exceptions to open meetings codified at KRS 61.810(1) (a) through (l) applied to the meeting from which she was excluded, and that, accordingly, the meeting should have been publicly conducted. As a means of remedying this violation, Ms. Rausch proposed that KDE ensure that all future meetings of this body are open to the public, and that KDE furnish her with copies of all materials distributed at the June 15 meeting, a summary of the discussion that took place at the meeting, and an audiotape of the meeting, if available.
In a response dated June 27, 2000, Mr. Noland denied the allegations in Ms. Rausch's complaint. He explained:
This meeting was not a public meeting because no meeting of the "members" of the agency, as defined in KRS 61.805(4), occurred. KRS 61.805(4) states "Member" means a member of the governing body of the public agency and does not include employees or licensees of the agency." In this case, Department employees met with contractual employees and no members of the Kentucky Board of Education were present. The Kentucky Board of Education is the governing body of the Department. In any event, under KRS 61.810(1), a quorum (a majority of 801) of KDE employees was not present at the meeting and therefore, the meeting is not subject to the open meetings act.
Nevertheless, Mr. Noland furnished Ms. Rausch with a copy of the meeting agenda, and agreed to furnish her with a copy of the meeting summary "when finalized." He rejected her proposal that all future meetings be taped, noting that "executive branch agency meetings occur daily across state government and are not typically taped." The attached agenda identified the gathering as a "KDE/CTB/DRC/HumRRO/West Ed Contractor Meeting," and listed three major areas of discussion consisting of development issues, processing issues, and technical issues. Shortly after receiving KDE's response, Ms. Rausch initiated this open meetings appeal, asserting that "CATS is of such importance for the students, parents, teachers, and schools in the Commonwealth that openness to parents and teachers [sh]ould be foremost in the minds of KDE."
In a supplemental response directed to this office following commencement of Ms. Rausch's appeal, Mr. Noland amplified on KDE's position. He observed:
The June 15 staff meeting with contractors was not a meeting subject to the Open Meetings Act, KRS 61.800 et seq. KRS 61.810(1) provides, in part: "All meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times, except for the following: ..." Two of the key words in that quote are "quorum" and "member." Under the definitional statute for the Open Meetings Act, KRS 61.805, "member" is defined as follows: "Member" means a member of the governing body of the public agency and does not include employees or licensees of the agency." KRS 61.805 (4). As a result, the staff meeting in question was not subject to the Open Meetings Act, as the persons in attendance were not members of the governing body of KDE, as "member" does not include KDE employees. The governing body of KDE is the Kentucky Board of Education (KBE), pursuant to KRS 156.029 and 156.070. Of course, meetings of the KBE are subject to the Open Meetings Act.
The other key word in the quotation of KRS 61.810(1) above is "quorum. " Even if KDE staff meetings with the contractor were subject to the Open Meetings Act, (which, as explained above, they are not), a quorum of the agency staff was not present, as KDE has 801 employees.
Ms. Rausch seems to assert that one of the reasons listed in KRS 61.810(1) must be present for the meeting not to be subject to the Open Meetings Act. On the contrary, the exceptions listed there are grounds for legitimately going into executive session during a meeting that is subject to the Open Meetings Act. The meeting in question on June 15 was not subject to the Open Meetings Act to begin with, as explained above, and as a result the exceptions listed in KRS 61.810(1) are irrelevant. On a daily basis, numerous meetings occur among executive branch agency staff with some external contractors or other people, and none of these hundreds of meetings are subject to the Open Meetings Act. The law does not require that these meetings have a written agenda nor that there be minutes. Agenda and minutes are created on a discretionary basis. In the case of the June 15 meeting in question, an agenda which was provided to Ms. Rausch was prepared. Additionally, draft summary meeting notes were prepared, and when they are finalized they will be forwarded to Ms. Rausch.
With specific reference to the matters discussed at the CDE staff and contractors meetings, Mr. Noland commented:
Policy development relating to the Commonwealth Accountability Testing System (CATS) is a very open process. After ideas are generated, opinions expressed, and there is discussion at the monthly KDE staff meetings with the contractors, items which are adopted as recommendations for development as a part of CATS are taken through the public process of the following groups, all of which are subject to the Open Meetings Act as being statutorily created entities: The National Technical Advisory Panel on Assessment and Accountability, pursuant to KRS 158.6454; the School Curriculum, Assessment and Accountability Council, pursuant to KRS 158.6452; and, the Kentucky Board of Education, pursuant to KRS 156.070 and 158.6453. Ms. Rausch is welcome to attend all of their meetings and review copies of their minutes, as she has done numerous times in the past. Of course, secured test items are not a part of that public discussion, but the other items that deal with policy development, arising out of monthly staff meetings do become a part of that public discussion. Additionally, any administrative regulations promulgated in the assessment and accountability area as a result of those policy developments, go through the above identified groups, as well as through the Legislative Research Commission's Education, Assessment and Accountability Review Subcommittee, pursuant to KRS 158.6471. Of course, these Legislative Committees hold their meetings in public, during which the proposed regulations are reviewed for approval.
Finally, the monthly KDE staff meetings with contractors also discuss implementation of policies and regulations already decided by the KBE after the open process described above involving the National Technical Advisory Panel on Assessment and Accountability, the School Curriculum, Assessment and Accountability Council, and the KBE.
In closing, Mr. Noland noted that Ms. Rausch is welcome to attend meetings of the Kentucky Board of Education, the National Technical Advisory Panel on Assessment and Accountability, and the School Curriculum, Assessment and Accountability Council as a means of monitoring official action on this subject of great public interest and concern. We believe that KDE's analysis of these issues is persuasive, and that the position it takes finds ample support in existing legal authority.
Although Kentucky's courts have recognized that in enacting the Open Meetings Act, the General Assembly determined that "the right of the public to be informed transcends any loss of efficiency,"
Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987), in OAG 94-25 this office undertook an analysis of "the extent to which the open meetings law reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees." OAG 94-25, p. 2. We proceeded on the premise that:
Our open meetings law is intended to provide public access to meetings of decision-making bodies, and it is not intended to provide public access to the day-to-day administrative work of a public agency. This approach "avoids the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Tribune Publishing Company v. Curators of University of Missouri, 661 S.W.2d 575, 585 (Mo. App. 1983).
Id. at 3.
In the appeal before us, the decision-making, or governing, body of the KDE is the Kentucky Board of Education whose meetings are unquestionably governed by the Open Meetings Act. The narrow issue before us is whether the KDE staff and contractors who gather for the purpose of implementing CATS falls within one or more of the definitional sections codified at KRS 61.805(2)(a) through (h). Simply put, is this body a public agency for purposes of the Open Meetings Act, and are its meetings subject to the requirements of the Act. We believe that the answer to these questions is "no."
KRS 61.805(2) defines a "public agency" as:
(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 district 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;
Subsections (a), (b), (c), and (h) are facially inapplicable to the KDE staff/ contractor work group. Because the KDE staff/ contractor group itself has no governing body, KRS 61.805(2) (f) is inapposite. So too are KRS 61.805(2)(d) and (e). As KDE correctly observes, the Kentucky Board of Education is the governing body of the Department of Education and it owes its existence to the legislative charter found at KRS 156.029. The staff/ contractor work group meets voluntarily and not pursuant to statute, order, ordinance, resolution, or other formal act. Finally, the work group cannot be characterized as a board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency that is established, created and controlled by a public agency within the meaning of KRS 61.805(2) (g). It was neither established nor created by the Kentucky Board of Education or the Department, nor is it controlled by these agencies. Authority has not been officially delegated to it, nor have specific matters been formally entrusted to it. Although it observes a number of formalities in the conduct of its meetings, it exists as an informal work group of KDE staff and KDE contractors involved in the day-to-day administrative work of the public agency.
As the Missouri court observed in Tribune Publishing Co. , "Neither the letter nor the spirit of the 'Sunshine Law' presaged an era wherein purely administrative meetings and administrative functions of public bodies without power or authority to govern were to be subject to public participation." Times Publishing Co. , above at 584. Having determined that the work group is not a public agency for purposes of the Open Meetings Act, and that its gatherings do not trigger the requirements of the Act, we need not address the issue of whether it was authorized to go into executive sessions pursuant to one or more of the exceptions to open meetings codified at KRS 61.810(1)(a) through (1).
This position finds support in a number of open meetings decisions issued by the Attorney General. For example, in 94-OMD-148, this office declared that the 2010 Group of Hardin County was not a public agency for open meetings purposes because it consisted of public officials, legislative and executive, from various governmental entities, none comprising a quorum of the entities they represented, and it met voluntarily, not pursuant to statute, ordinance, order, resolution, or other legislative act. Similarly, in 95-OMD-71, we held that the President's Cabinet and President's Leadership Team at Prestonsburg Community College were not public agencies within the contemplation of the Open Meetings Act. Fundamental to this decision was the recognition that the two groups functioned as informal work groups and were "not grounded in statute, executive order, regulation or resolution of any kind," and that their meetings "could just as easily be characterized as staff meetings or administrative personnel meetings." 95-OMD-71, p. 6. Finally, in 96-OMD-174 the Attorney General opined that a group of public officials, officers, and employees from various governmental entities which met to discuss budget appropriations did not fall within the definition of a public agency since none of those entities was represented by a quorum, and the group did not exist pursuant to statute, ordinance, order, resolution, or any act of any public agency. Compare, 97-OMD-139 (Housing Appeals Committee at Eastern Kentucky University is a public agency pursuant to KRS 61.805(2)(g) and its meetings are open to the public unless it can properly rely on one or more exceptions to open and public meetings); 98-OMD-96 (City of Madisonville Sign Committee appointed by zoning administrator to review and report on existing sign ordinance is a public agency as defined in KRS 61.805(2)(f) insofar as its members were appointed by a local official); 99-OMD-77 (budget committee appointed by Franklin County Fiscal Court is a public agency pursuant to KRS 61.805(2)(g) as an advisory committee established, created, and controlled by a public agency) . We believe that the staff/ contractor meetings at issue in this appeal are akin to the meetings conducted in 94-OMD-148, 95-OMD-71, and 96-OMD-174, rather than the meetings at issue in the latter decisions.
The fact that the work group complied in some particulars with the requirements of the Open Meetings Act does not alter our analysis. As Mr. Noland correctly observes, agency staff meets on a daily basis, and many of these meetings involve contractors and other interested parties. Although agendas for, and minutes of, these meetings may be generated on a discretionary basis, the Open Meetings Act does not require staff to create them. Accordingly, we find no error in the decision to exclude Ms. Rausch from the June 15, 2000, meeting of KDE employees and contractors. Because the individuals attending the meeting could not be characterized as a public agency for purposes of the Open Meetings Act, we find that they were not required to open their meeting to the public.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). 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.