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 Kuttawa Relocation Foundation, Inc., (KRF) 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 KRF, formed as a private non-profit corporation "to aid in the plans of the city of Kuttawa for relocations which were made necessary by the construction of Barkley Dam and the formation of Lake Barkley," is not a public agency as defined in KRS 61.805(2), and is not bound by the requirements of the Open Meetings Act.
By letter dated January 28, 2003, Richard G. Bowman submitted a written complaint to W. C. McConnell, Chairman, Kuttawa Relocation Foundation, Inc., "concerning the action taken at the KRF Annual Director's meeting held on August 16, 200[2] at some 'non-disclosed' location, and another KRF meeting held in McConnell Drug Store on October 15, 200[2]." In his complaint, Mr. Bowman asserted in relevant part:
The minutes of that meeting show that these were not "open meetings" as required by law for a "public agency" controlling, using our public money and maintaining our public assets.
At this August 16th meeting, the Directors nominated and approved six of the seven required KRF Directors to be in accord with the new KRF Corporate By-Laws.
Other KRF reports, discussions of KRF business and its financial data were also presented, discussed, and acted upon at these meetings.
As a means of remedying this alleged violation, Mr. Bowman proposed that KRF "discuss at a future meeting, in an open and public session, those matters that were discussed and acted upon at the improperly called KRF meetings on August 16, 200[2] and October 15, 200[2]. All actions taken at these meetings should be declared null and void."
By letter dated February 4, 2003, Alan C. Stout, Attorney at Law, responded to Mr. Bowman's complaint on behalf of KRF. In his response, Mr. Stout indicated that he was in the process of advising KRF as to the requirements of the Open Meetings Act and stated that it appeared that the KRF, in its meetings, had substantially complied with the Open Meetings Act, as required under KRS 61.805 and KRS 61.848. This appeal followed.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Stout provided this office with a response to the issues raised in the appeal. In his response, Mr. Stout advised, in pertinent part:
KRF has no formal office in Lyon County (or in any county for that matter), nor has the KRF had a formal office at any time in its forty-two (42) year existence. Specifically, the KRF was formed as a nonprofit corporation on or about June 10, 1960. Since that time, KRF has functioned as a nonprofit corporation to aid in plans of the city of Kuttawa for relocations which were made necessary by the construction of Barkley Dam and Formation of Lake Barkley.
Subsequently, at the request of this office, Mr. Stout was asked to review KRS 61.805(2), which defines "public agency" for purposes of the Open Records Act, and advise as to whether the KRF fell within any the definition of "public agency" set forth in KRS 61.805(2)(a)-(h). By letter dated February 21, 2003, Mr. Stout advised:
Pursuant to your request, I have carefully reviewed the Article of Incorporation and bylaws of the Kuttawa Relocation Foundation, Inc. (KRF). Based upon my review of the corporate records, it appears that KRF would not be a "public agency" as defined at KRS 61.805(2). None of the statutory definitions contained in KRS 61.805(2)(a)-(h) apply to the KRF.
We are asked to determine whether the KRF violated the Open Meetings Act. We find, based on the record presented, that KRF is not a public agency for purposes of the Open Meetings Act and, thus, cannot be said to have violated the 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 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 KRF takes.
Moreover, no argument is advanced that the KRF is a public agency as defined in KRS 61.805(2)(a), (b), (c), (d), (g), or (h), and these provisions are facially inapplicable to that entity. Mr. Stout has advised that he has reviewed each of these subsections of KRS 61.805(2) and affirmatively advised that KRF does not fall within the definition of "public agency" as defined by that statute.
It follows that the board of directors of the KRF is not required to comply with the requirements of the Open Meetings Act. We proceed no further in our analysis. Because the Kuttawa Relocation Foundation, Inc., cannot properly be characterized as a public agency within the meaning of KRS 61.805(2)(a) through (h), its board is not obligated to conduct public meetings. Neither the corporation, nor its board, is governed by the 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). 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 proceedings.
Footnotes
Footnotes
1 It should be noted that a private, non-profit corporation may be a public agency for purposes of the Open Records Act, though it is not a public agency for purposes of the Open Meetings Act. See, e.g., 97-ORD-140 (holding that Seven Counties Services, Inc. is a public agency within the meaning of KRS 61.870(1)(h) in that it derives more than 25% of its funding from state or local authorities). This dichotomy arises from the differences in the definition of "public agency" found in each of the Acts. OAG 76-648.