Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Case Review Committee of the Kentucky Board of Pharmacy (Board) is a public agency for purposes of the Open Meetings Act and whether its failure to comply with the requirements of the Act constituted a violation of the Act. For the reasons that follow, we conclude that the committee is a public agency within the meaning of KRS 61.805(2)(d), (e), (f), and (g).
On June 16, 2004, Margaret M. Pisacano, attorney for Georgina Kindall-Jones, R. Ph., submitted a written complaint to Jeffrey L. Osman, Interim Executive Director, Kentucky Board of Pharmacy, in which she alleged that the Case Review Committee violated the Open Meetings Act at its June 8, 2004 meeting. Ms. Pisacano complained that she was wrongfully barred from the Case Review Committee meeting and particularly the discussion relative to review of the case of her client, Ms. Jones. She proposed that the Board remedy this violation by having the proceedings against her client voided, or in the alternative that the Case Review Committee reconvene and discuss the issues raised at the June 8, 2004 meeting along with a discussion of the recommended parameters. As a final remedy, she requested that Case Review Committee meetings in the future be conducted pursuant to the Open Meetings Act.
In a response dated June 18, 2004, Mr. Osman responded to Ms. Pisacano's denying that the Case Review Committee (CRC) had violated the Open Meetings Act. In his response, Mr. Osman explained in part:
The CRC has but one member who is a member of the Board. The CRC does not constitute a quorum of the Board. The Open Meetings Law applies to meetings of a quorum of the Board, with limited exceptions-none of which are met here, and which must be open to the public unless otherwise specifically exempt under law. See KRS 61.810. Nothing in 201 KAR 2:061, Section 3, (1) requires that the CRC actually conduct a meeting at all. The CRC discharged its Board duties, consistent with its function as set forth by Board regulation and in accord with the Open Meetings Law, when it recommended to the Board at its next regularly scheduled meeting of June 9, 2004, an appropriate disposition on every matter pending before the CRC, including agency Case Number 04-0040. That meeting was open to the public, and you and your client attended that meeting.
Furthermore, KRS 61.810(2) allows "Discussions between individual members where the purpose of the discussion is to educate the members on specific issues." The CRC conferred in person the day before June 9, 2004, to do just that. No recommendations were made to the Board or any of its members at that conference, and the recommendations that were later made to the Board were done in an open meeting of the Board on June 9, 2004, in which both you and your client attended.
Finally, you have made it clear that you wished not only to attend the conference of the CRC but wished to address it, too, on the merits of the investigation pending against Ms. Jones. Even if the CRC conference had been open to the public under the Open Meetings Law, you would have no right to address the CRC, which was your ultimate goal. If you remember during our telephone conversation that day, I advised you to contact Mark Brengelman before making a special trip to Frankfort. You and your client met three times with the Board's representatives outlining your client's position with regard to each and every aspect of this matter. As such, the CRC concluded at the time that it had complete information from you and your client regarding the case, and thus did not need to have you repeat that same position yet another time.
Based upon the above, the Board is and was in compliance with the Open Meetings Law when its CRC conferred with its one member of the Board to be educated on the specific issues in agency Case Number 04-0040. . . .
After receipt of the Board's response, Lynn Rikhoff Kolokowsky, a member of Ms. Pisacano's firm, initiated this open meetings appeal on behalf of Ms. Pisacano and her client Ms. Kindall-Jones.
In a supplemental response to this office following commencement of Ms. Kolokowsky's appeal, Mark Brengleman, Assistant Attorney General and Special Counsel, Kentucky Board of Pharmacy, elaborated on the Board's initial response and its position on appeal, explaining, in relevant part:
The CRC is not a public agency because it is not a committee of the members of the Board or a quorum of the members of the Board. It is a group of persons who are employed by the public agency and just one Board member. As defined by administrative regulation, the CRC is created to serve an administrative function of the Board. Just one Board member serves on the CRC. The other two defined members are the Board's Executive Director and its pharmacy drug inspector. See 201 KAR 2:061 § 3(1). As such, one Board member is not a quorum of the Board as required by KRS 61.810. Events at which one Board member attends are not "meetings" as defined by the Open Meetings Law. The CRC is not a public agency, but rather consists of employees of a public agency. "Member" does not include employees of the agency. KRS 61.805(4).
The CRC carries out an investigative function and confers from time to time, and its membership includes a pharmacy drug inspector of the Board. Investigations, interviews, and document reviews occur on a day-to-day basis on behalf of the Board through its CRC. The Kentucky Open Meetings Law has recognized that such administrative functions of the employees of a public agency are not subject to the open meetings laws. The decision-making process of the Board is discharged consistent with the open meetings law when the CRC recommends the disposition of an investigative matter to the Board at a meeting of the Board. That occurred in this matter at the Board's regularly scheduled, and open, meeting of the Board in which Ms. Jones, her attorney, and the public attended. The Open Meetings Law is not intended to provide access to administrative work of the agency such as that of the CRC when just one member of the Board sits on the CRC. See 95-OMD-71 (open meetings law is not intended to provide public access to the day-to-day administrative work of a public agency) .
The absence of a quorum of the Board also makes work of the CRC exempt from the Open Meetings Law since CRC lacks a quorum of the Board. In Bourbon County Board of Adjustment v. Currans, Ky. App., 873 S.W.2d 836 (1994), the Court of Appeals held that the Open Meetings Law was not applicable to a meeting of Board of Adjustment members where a quorum was absent, and where that group met in private review of various matters for the purpose of preparing filings to a pending legal action.
Here, the CRC lacks a quorum of the Board since just one Board member serves on the CRC. The CRC conferred together to "review the conclusions and recommendation relating to an investigation." Like the case above, the Open Meetings Law does not apply to such private reviews of information in the absence of a quorum.
It is important to note here that the CRC is not open to the public insofar as neither the licensee under investigation nor the person(s) who complained to the Board are allowed to be present. The Board disputes that it is "the policy of this Board to welcome comments at its meeting," June 16, 2004, letter to the Board, p. 1, insofar as the CRC is concerned, which is not and has not been open to the public.
Interviews and document reviews of the person(s) who complained to the Board, and of the pharmacist who is the subject of the complaint, are conducted separately. Neither are permitted to attend the CRC. To allow one person but not the other to attend and be heard may violate due process. Then, the appropriate time for both to be heard is under a proceeding governed by KRS Chapter 13B, not the Open Meetings Law.
?
The Open Meetings Law is not intended to apply to a meeting of a Board member and an employee(s) of the Board. To hold otherwise would reach an absurd result. The one member of the Board designated to serve on the CRC would not be able to confer with the Board's Executive Director and/or inspector without complying with the Open Meetings law allowing public access. Every encounter - whether by telephone, in person, by electronic mail - between the Board member on the CRC and an employee of the Board would be required to be open to the public as a meeting of the Board. The Open Meetings Law is not intended to operate in such a way. The Open Meetings Law is intended to allow public access to the decision-making process of the Board - which was met here by the Board when its CRC did recommend to the Board a disposition of Agency Case Number 04-0040 at a public meeting of the Board when Ms. Jones, her attorney, and the public at large were present.
We are asked to determine whether the Case Review Committee (CRC) of the Kentucky Board of Pharmacy (Board) is a public agency for purposes of the Open Meetings Act and whether its failure to comply with the requirements of the Act constituted a violation of the Act. For the reasons that follow, we conclude that the committee is a public agency as defined in KRS 61.805(2)(g) and its failure to follow the requirements of the Act violated the Act.
KRS 61.805(2)(g) defines the term public agency as:
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[.]
The Kentucky Board of Pharmacy is a public agency within the meaning of KRS 61.805(2)(a), and any committee established, created, and controlled by it is a public agency pursuant to KRS 61.805(2)(g). See, e.g., Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that the presidential search committee created by action of the Board of Trustees of the University of Kentucky, a public agency created by statute, is itself a public agency) ; OAG 91-54 (holding that a committee created by the Mercer County Fiscal Court to consider proposals relating to planning and zoning is a public agency) ; 93-OMD-49 (holding that a three member grievance committee appointed by the Mayor of the City of Scottsville is a public agency) ; 95-OMD-124 (holding that an emergency medical services committee appointed by the Boyle County Judge/Executive is a public agency) ; 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 (holding that a sign committee created by the City of Madisonville zoning administrator is a public agency) ; 99-OMD-77 (holding that a finance and budget committee created by Franklin County Fiscal Court as an advisory body is a public agency as defined in KRS 61.805(2)(g)). 1
Pursuant to its authority under KRS 315.191(1), the Board promulgated 201 KAR 2:061, which sets forth the procedures followed by the Kentucky Board of Pharmacy in the investigation and hearing of complaints. Section 3 of that regulation established the CRC panel and provides:
(1) A panel consisting of the assigned board member, the executive director, and the pharmacy drug inspector shall review the conclusions and recommendation relating to an investigation.
(2) The panel shall recommend one (1) of the following options to the board:
(3) Documentation of a board reprimand shall be maintained in the appropriate files.
Thus, the CRC is not an informal working group, but is grounded by a regulation promulgated by the Board to meet as a panel to "review the conclusions and recommendation relating to an investigation" and recommend to the Board either to reprimand or issue a formal complaint. The committee and its membership was "established, created and controlled by a 'public agency, '" the Board. KRS 61.805(2)(g).
In 97-OMD-139, we adopted the standard for determining whether an entity is subject to the Act, set forth in OAG 94-25, and found the Housing Appeals Committee at Eastern Kentucky University to be a public agency because its members acted as a unit, its authority had been officially delegated to it, its responsibility was to consider, investigate, take action on, or report to a higher authority, and specific matters were entrusted to it. We believe that the same reasoning can be extended to the Complaint Review Committee, and that it must be treated as a public agency for purposes of the Open Meetings Act. See also, Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987) (holding that "a public agency is any agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency" ).
In 201 KAR 2:061, Section 3, the Board established the CRC panel, which is to act as a unit and has been delegated the authority to "review the conclusions and recommendation relating to an investigation" and has the responsibility to report to a higher authority (the Board) either to reprimand or issue a formal complaint against licensee, permit, or certificate holder. Accordingly, we conclude that the CRC is a "public agency" subject to the provisions of the Open Meetings Act, KRS 61.805(2)(g).
Because the CRC, standing alone, constitutes a public agency for purposes of the Open Meeting Act, we do not look to the total composition of the Board to determine the presence of a quorum, but to the composition of the CRC itself. 99-OMD-77. The committee consists of three members. A quorum of the committee is present, and a meeting occurs, when two of its members come together, to discuss public business, 2 "regardless of where the meeting is held, and whether regular or special and informational or casual gatherings held in anticipation of or in conjunction with a regular or special meeting. " KRS 61.805(1).
Since a quorum of the members of the CRC was present and public business was discussed, i.e., to meet and review the conclusions and recommendations relating to a complaint investigation and recommend to the Board whether to reprimand or conduct a formal hearing on the licensee, <<3> the CRC violated the Open Meetings Act by failing to notify the public about the meeting, and by excluding the public from the meeting. 4 98-OMD-94.
Established, created, and controlled by the Board, the CRC is, as noted above, a public agency defined at KRS 61.805(2)(g), and meetings of the committee at which a quorum of the committee (as opposed to a quorum of the members of the Board ) are present, and at which public business is discussed, are required to conform to the requirements of the Open Meetings Act. 99-OMD-77.
Based upon these principles, the Kentucky Board of Pharmacy, and its Complaint Review Committee, must proceed in discharging their duties under 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 proceedings.
Lynn Rikhoff KolokowskyJenkins Pisacano Robinson BaileyCourt Square Building269 West Main Street, Suite 100Lexington, KY 40507
Jeffrey L. Osman, Pharm. D.Interim Executive DirectorKentucky Board of Pharmacy 23 Millcreek ParkFrankfort, KY 40601-9230
Mark BrengelmanAssistant Attorney General700 Capitol Avenue, Suite 118Frankfort, KY 40601
Footnotes
Footnotes
1 The Complaint Review Committee may also be characterized as a public agency as defined in KRS 61.805(2)(d) (as "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) ; KRS 61.805(2)(e) (as "any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act. " and as defined in KRS 61.805(2)(f) (as "any entity where a majority of its governing body is appointed by a public agency, member or employee of a public agency, a state or local officer, or any combination thereof").
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2 In Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 474 (1998), the Kentucky Supreme Court defined the term "public business" as "the discussion of the various alternatives to a given issue about which the [agency] has the option to take action."
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4 Unless a public agency has adopted a schedule of public meetings, all its meetings would be special meetings. As this office has so often observed, "there are only two kinds of meetings - regular and special meetings." 94-OMD-50, p.3. Any meeting that is not a regular meeting is a special meeting, and is subject to the notice requirements codified at KRS 61.823.
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