Request By:
Elbert A. Powell
P.O. Box 601
Nortonville, KY 42442Richard L/ Frymire
Hopkins County Judge/Executive
Courthouse
10 S. Main Street
Madisonville, KY 42431Robert P. Moore
Hopkins County Attorney
25 E. Center Street
Madisonville, KY 42431
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Assistance Center Fund, Inc. is a public agency subject to the requirements of the Open Meetings Act, and, if so, whether a violation of the Act occurred when Elbert A. Powell was excluded from a meeting of the Hopkins County Judge/Executive, three members of Assistance Center Fund, Inc., and an employee of Hopkins County. For the reasons that follow, we conclude that Assistance Center Fund, Inc. is not a "public agency, " as defined in KRS 61.805(2), and thus, is not subject to the requirements of the Open Meetings Act. We further conclude that the meeting at issue did not constitute a "public meeting, " as defined by KRS 61.810(1) , and thus was not subject to the provisions of the Act.
On March 28, 2002, Elbert A. Powell submitted a written complaint to Richard Frymire, Hopkins County Judge/Executive, in which he expressed the view that a violation of the Open Meetings Act had occurred when he was excluded from a meeting being held in a conference room of the Hopkins County Government Center. In his complaint, Mr. Powell asked Judge Frymire to explain the nature of the meeting and to advise him as to "what KRS would prevent me from attending as a citizen?"
Responding to Mr. Powell's complaint by letter dated April 2, 2002, Robert P. Moore, Hopkins County Attorney, in relevant part, advised:
It is my understanding that the meeting from which you were excluded involved the Judge/Executive, an employee of the county, and several members of the Assistance Center Fund, Inc.; therefore, under the above section [KRS 61.810(1)], the meeting did not represent one where a quorum of members of the public agency was present.
Assuming arguendo that the above interpretation is not correct, the specific meeting which you question would be excluded and not open to the public under KRS 61.810(f) , which states:
According to what I am told by Judge/Executive Frymire, this was such a meeting between the Judge/Executive and an employee about a matter which may have had a possible disciplinary result.
I hope you can appreciate the need for confidentiality when an executive discusses a specific personnel matter with an employee of the organization. Fairness to the employee and the organization dictate that these sorts of meetings not be open to the public. Exclusion of the public from such meetings is well-grounded in both federal and state law, specifically 61.810(f).
In a reply letter, Mr. Powell questioned, among other things, Mr. Moore's assertion that Assistance Center Fund, Inc. was not a public agency and, if the County Judge/Executive was meeting with Assistance Center Fund, Inc. on behalf of the Fiscal Court, should not there been a vote by the Fiscal Court to go into closed session and the public be advised as to the general nature that the closed session was being held and under what specific provision of KRS 61.810 it was authorized.
In his letter of appeal, Mr. Powell asks this office to determine whether the action of the County Judge/Executive in excluding him from the meeting violated the Open Meetings Act.
After receipt of the Notification of the appeal and a copy of Mr. Powell's letter of appeal, Judge Frymire provided this office with a response to the issues raised in the appeal. In his response, Judge Frymire advised:
The Assistance Center Fund, Inc. is a private, non-profit corporation established in October, 2000 with an eight person Board of Directors. The incorporator of Assistance Center Fund, Inc. is a private citizen of Hopkins County. Mr. Powell offers no proof to support his allegation that the Assistance Center Fund, Inc. meets the criteria set forth in KRS 61.805(2). In fact, the attached copies of the Articles of Incorporation, Amended Articles of Incorporation and By-Laws of the Assistance Center Fund, Inc. clearly demonstrate that the Assistance Center Fund, Inc. was "established as a private, non-profit corporation ? and does not owe its existence to legislative act or executive order." 01-OMD-34 (copy attached). The Board of Directors of the Assistance Center Fund, Inc. does not meet the criteria of KRS 61.805(f) in that only four of the eight Directors are appointed by a public agency.
?
Therefore, we believe that the Assistance Center Fund, Inc. does not meet the criteria set forth in KRS 61.805 and is not subject to the Open Meetings Act.
To address the remaining portions of Mr. Powell's complaint, on March 27, 2002 at 4:00 p.m., the Judge/Executive met with a County employee who is the Director of the Hopkins County Assistance Center. The Assistance Center is funded by the Hopkins County Fiscal Court and provides services to the indigent in Hopkins County. Also present at that meeting were three members of the Board of Directors of the Assistance Center Fund, Inc., a non-profit corporation that receives gifts and donations to benefit the indigent. Whether or not the Assistance Center Fund, Inc. is a public agency and therefore subject to the Open Meetings Act is not relevant because there was not a quorum of its members nor was there a quorum of the Hopkins Fiscal Court present. Therefore, the criteria of KRS 61.810 are not met and there was no violation.
The meeting was called by the County Judge/Executive to discuss a specific personnel matter with an employee of Hopkins County who had a confrontation with an employee of the City Housing Authority. By his invitation, three persons who have worked as volunteers at the Assistance Center were asked to attend. Coincidentally, these three are on the Board of Directors of the Assistance Center Fund, Inc. However, the Assistance Center Fund, Inc. does not hire, fire or discipline county employees, including the Director of the Assistance Center. As there was not a quorum of any public agency, this meeting does not meet the criteria for an Open Meeting as set forth in KRS 61.810 and there are no notification requirements nor is there a motion or second required in Open Court to hold this meeting.
It is not appropriate to discuss the nature of a meeting of this type with a non-involved citizen such as Mr. Powell. To do this would be unfair to the employee in question. It is proper to exclude the public from discussions regarding possible disciplinary action towards an employee. This view is well established in both federal and state law as well as past Opinions issued by the Attorney General.
We are asked to determine whether the exclusion of Mr. Powell from the meeting at issue violated the Open Meetings Act. For the reasons that follow, we conclude it did not.
On the record presented, we find that Assistance Center Fund, Inc. is not a public agency subject to the provisions 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[.]
In 01-OMD-34, this office discussed this definitional language and its application to private, non-profit corporations. In that decision, at p. 5, we explained:
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 Meetings Act. 1 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) ; 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) ; and 98-OMD-174 (holding that a committee of a private, non-profit professional association of physicians that oversaw county ambulance service was not a public agency under the Open Meetings Act) . Thus, the overwhelming weight of authority supports the position which the KBF takes.
(footnote omitted.)
Therefore, all of the subsections, with the exception of KRS 61.805(2)(f), are facially inapplicable to the Assistance Center Fund, Inc.
KRS 61.805(2)(f) provides:
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;
As explained by Judge Frymire in his response, the Board of Directors of the Assistance Center Fund, Inc. does not meet the criteria of KRS 61.805(2)(f) in that only four of the eight Directors are appointed by a public agency. Four appointed directors would not constitute a majority of the governing body. Thus, we conclude that the Assistance Center Fund, Inc. is not a "public agency" under KRS 61.805(2)(f) or any other of the subsections of KRS 61.805(2). The meeting, which included three Directors of the Assistance Center Fund, Inc, was not a public meeting because of their presence. In fact, an assemblage of three of its Directors would not even constitute a quorum of the eight member private Board.
Moreover, as Judge Frymire further explained in his response, the meeting at issue was to discuss a specific personnel matter with a county employee who had been involved in a confrontation with another county employee.
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.
In OAG 94-25, at page three, we said that the Open Meetings Act is intended to provide public access to meetings of decision-making bodies but it is not intended to provide access to the day-to-day administrative work of a public agency. It was also noted that at some point the level of subdelegation is reached at which the work being done is too remote from the decision-making process to invoke the public interest secured by the Open Meetings Act.
KRS 61.810(1) defines "public meeting" as:
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.
As noted above, the meeting did not involve a quorum of members of a public agency, thus, it does not fall within the definition of a "public meeting" subject to the provisions of the Act.
We conclude that the meeting between the County Judge/Executive and a county employee, with three other individuals present, to discuss a specific personnel matter involving that employee, was of the nature of the day-to-day administrative work of a public agency, and not a public meeting, as defined by KRS 61.810(1). Accordingly, we find that the meeting was not required to be open 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.
Footnotes
Footnotes
1 [ILLEGIBLE FOOTNOTE]