Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Lincoln County High School faculty is a public agency for purposes of the Open Meetings Act, and whether the faculty's failure to comply with the notice requirements found at KRS 61.823 at its February 25, 2004, meeting constituted a violation of the Act. For the reasons that follow, we find that the faculty is not a public agency as defined in KRS 61.805(2), and that it therefore did not violate the Act by failing to provide notice of its February 25 meeting.
On May 6, 2004, Mr. Keith K. Schillo submitted a written complaint to Lincoln County High School Principal Ty Howard in which he alleged that the faculty violated the Open Meetings Act when it conducted an unpublicized meeting on February 25 during the course of which it "voted on several plans for implementing a federal Smaller Learning Communities grant." Specifically, Mr. Schillo complained that "public notification of the February 25 meeting was not made available at the school, or announced in the local newspaper." As a means of remedying the alleged violation, he proposed that "the faculty reconvene to vote on SLC plans in a manner compliant with the Open Meetings Law. "
In a response dated May 11, 2004, Mr. Howard denied the allegation in Mr. Schillo's complaint, asserting that "[h]igh school faculty meetings do not meet the definition of a public agency, so the Open Meetings Law does not apply." Shortly thereafter, Mr. Schillo initiated this appeal. He argued:
[T]he high school is a public agency. A high school is a "local authority (KRS 61.805a)," its faculty is clearly a "policy-making board of an institution of education (KRS 61.805d)," and it is clearly a "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 (KRS 61.805e)." Moreover, high school faculty meetings are not included in exceptions to open meetings (KRS 61.810). Finally, . . . OAG 94-25 . . . states that "[m]eetings of a university senate, college faculty, or department faculty are subject to the Open Meetings Law. " [Sic.]
It was Mr. Schillo's position that "[i]f the meetings of faculty from one public educational institution are subject to the Open Meetings Law, then clearly the meetings of faculty from another public educational institution are subject to this law."
In correspondence directed to this office following commencement of Mr. Schillo's appeal, Lincoln County Superintendent Teresa Wallace elaborated on Mr. Howard's position. She maintained that "[t]he high school faculty has no authority, is not a policy-making board, and is not created by statute," that "[t]he purpose of high school faculty meetings is for information and direction to be given by the principal concerning student and staff situations," and that "[t]he SBDM Council is the policy-making board for the high school. " Noting that she had located no Attorney General opinions holding that elementary and secondary faculty meetings are subject to the Open Meetings Act, Superintendent Wallace urged this office to "refrain from issuing any such opinion and leave the policy-making body, the SBDM Council and affiliated committees, as the school agency subject to the Open Meetings Act. "
Pursuant to KRS 61.846(2), and in order to facilitate our review of the question on appeal, this office propounded a series of questions to Superintendent Wallace on May 27, 2004. Our questions and her responses follow:
1. Who is required to attend faculty meetings and does any specific authority exist for this requirement?
Attending faculty meetings is not a requirement for employment with the Lincoln County Schools. Faculty meetings are not addressed in either our Board Policies or our Employee Handbook. Individual principals determine the frequency and attendees of faculty meetings.
2. What subjects are discussed at faculty meetings?
Subjects discussed at faculty meetings include: daily procedures, upcoming events, classroom management issues, bus duty, lesson planning, assemblies, testing schedules, informal opinion surveys, and any other information needing to be shared by the principal or other staff member.
3. Are specific matters entrusted to the faculty?
Specific matters are not entrusted to the faculty as they have no policy-making authority.
4. Does the faculty have authority to consider, investigate, take action on, or report on specific matters entrusted to it?
The faculty is occasionally asked to consider or investigate specific maters, but they do not take action on items as the principal is the authority in the day to day operations of the school and the SBDM Council is the policy-making authority at the school level.
Based on these responses, and existing legal authority, we conclude that the faculty of the Lincoln County High School is not a public agency for open meetings purposes, and that the faculty did not violate the Open Meetings Act by failing to provide notice of its February 25 meeting.
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). 1
Id. at 3.
In the appeal before us, the Lincoln County High School Site Based Decision Making Council is the public agency charged with "the responsibility to set school policy consistent with district board policy . . . [to] provide an environment to enhance the students' achievement and [to] help the school meet the goals established by KRS 158.645 to 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 narrow question before us is whether the Lincoln County High School faculty falls within one or more of the definitional sections codified at KRS 61.805(2)(a) through (h) and is therefore obligated to comply with the Open Meetings Act when it gathers to discuss what can properly be characterized as the day-to-day administrative work of the high school. 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[.]
Contrary to Mr. Schillo's belief, subsections (a), (b), (c), and (h) are facially inapplicable to the Lincoln County High School faculty. Because the faculty itself has no governing body, KRS 61.805(2)(f) is inapposite. So too are KRS 61.805(2)(d) and (e). As noted, the Lincoln County High School Site-Based Decision Making Council is the policy-making body of the high school, and it owes it existence to the legislative charter found at KRS 160.345. The faculty meets on an as needed basis at the principal's discretion, and not pursuant to statute, order, ordinance, resolution, or other formal act. Finally, the faculty 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 high school or its Site Based Council, nor is it controlled by these agencies. Authority has not been officially delegated to it, nor have specific matters been formally entrusted to it. Its meetings focus on the day-to-day administrative work of the high school. 2
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 faculty is not a public agency for purposes of the Open Meetings Act, and that its meetings do not trigger the requirements of the Act, we need not address the issue of whether the failure to publicize its February 25 meeting constituted a violation of the Open Meetings Act. 3
This position finds support in a number of open meetings decisions issued by the Attorney General. For example, in 99-OMD-178 this office declared that the Bell County Middle School Parent-Teacher Organization was not a public agency as defined in KRS 61.805(2), and that the PTO did not violate the Open Meetings Act by failing to give written notice of a meeting. There we held that despite the expansive language of KRS 61.805(2), and the clearly expressed legislative intent that the law is to be strictly construed so as to avoid unauthorized secret meetings of public agencies, an entity that has "no formal authorization, no formal membership, no formal agency 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." 99-OMD-178, p. 4, citing 96-OMD-174, p. 3. Similarly, in 00-OMD-141, we held that a work group consisting of seven Kentucky Department of Education employees, four contractor representatives, and one employee of the Office of Education Accountability, whose discussions focused on implementation of the assessment program for elementary and secondary schools, was not a public agency for open meetings purposes because it did not fall within one or more of the definitional sections of that term codified at KRS 61.805(2)(a) through (h). Instead, it "exist[ed] as an informal work group of KDE staff and KDE contractors involved in the day-to-day administrative work of the public agency. " 00-OMD-141, p. 7.
Contrary to Mr. Schillo's belief, OAG 94-25 supports, rather than undermines, our position. In that opinion, we reasoned that unless an administrative unit 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 matters entrusted to it, it is not a public agency within the scope of this definition." At page 3 and 4 we concluded that the faculties of colleges and departments are public agencies because they are formally established bodies to which responsibility for acting on specific matters has been delegated. Each is comprised of a defined membership and each meets in regular sessions. Conversely, the faculty of the Lincoln County High School is not comprised of a defined membership, does not meet in regular sessions, does not act as a unit, and has not "been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it." OAG 94-25, p. 3. It is not a public agency for open meetings purposes and therefore not required to comply with the requirements of the Act in the conduct of its meetings. In so holding, we seek to avoid "the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Tribune Publishing Co., above at 585.
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.
Keith K. Schillo1800 Brad Petrey RoadWaynesboro, KY 40489
Ty HowardLincoln County High School 60 Education WayStanford, KY 40484
Teresa WallaceSuperintendentLincoln County High School 305 Danville AvenueP.O. Box 265Stanford, KY 40484
Footnotes
Footnotes
1 In Tribune Publishing Co., above at 585, the Missouri court observed:
Securing government accountability at the decisional level is one thing. Adversely affecting administrative efficiency at the non-decisional level is quite another thing. It is inconceivable that the salutary goal of letting the "sunshine" in on meetings of "public governmental bodies" envisioned elimination of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions.
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2 It is unclear whether the faculty actually voted "on several plans for implementing a federal Smaller Learning Communities grant" at the February 25 meeting and if so, what, if any, the effect of this vote was. While this and many other of the topics Superintendent Wallace described may be of public concern, they do not constitute "public business" as defined by the Kentucky Supreme Court in Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), to wit, "[T]he discussion of the various alternatives to a given issue about which the [agency] has the option to act."
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3 We are not persuaded that the omission of a high school faculty from the exceptions to the Open Meetings Act, codified at KRS 61.810(1)(a) through (l), imports a legislative intent to extend the scope of the Act to that body.
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