Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the University of Louisville's University Student Grievance Committee ("USGC") violated the Open Meetings Act at various meetings held between February 12, 2012, and May 1, 2012. The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, was a student dismissed from the University of Louisville's Brandeis School of Law after a proceeding before the law school's Honor Council. Pursuant to the University's policy manual ("the Redbook"), Dr. Grande filed a grievance with the law school's student academic grievance committee to contest his dismissal. The law school committee declined to hold a hearing and then forwarded its report to the University Provost, who disagreed and stated the law school committee should have held a hearing on Dr. Grande's grievance.
Again pursuant to University policy, Dr. Grande filed a grievance at the next level (the USGC) on January 12, 2012, contending that the law school's committee should have held a hearing. He obtained a favorable ruling from the USGC, issued May 1, 2012, concluding that he should have been given a hearing. In the present proceeding, despite this favorable outcome, Dr. Grande argues that he should have been given notice of any and all meetings of the USGC pursuant to the Open Meetings Act so that he could attend.
The USGC consists of four (4) faculty members, elected by the Faculty Senate, and three (3) student members, elected by the Student Senate, along with three alternates each for students and faculty. Its ordinary jurisdiction is appellate, after a grievance has been considered by a grievance committee within the student's "academic unit" of the University and by an administrator. In exceptional cases, the USGC has "original but not exclusive jurisdiction" where multiple academic units are involved or where a unit's grievance committee for some reason cannot consider the grievance. In cases of original jurisdiction, the USGC hears evidence, makes findings of fact, and recommends a remedy where appropriate. In cases of appellate jurisdiction, the USGC does not hold a hearing, but reviews the decision of a faculty body or administrator; it may not substitute its judgment on the merits, but may find that the decision "was not based on proper consideration" and direct a reconsideration, which it subsequently reviews. Ultimately, the USGC in an appellate case makes a recommendation to affirm, modify, or reverse the decision "and shall submit same as the committee report," after which the recommendation is considered and acted upon by "[t]he appropriate vice president or the Office of the President," by whom final action is taken. (Redbook, §§ 6.8.9-6.8.14.)
It appears from materials submitted by Dr. Grande that the USGC does not hold regular meetings, but only meets infrequently as the need arises, at which time a chair is appointed by the University President. According to a deposition excerpt from related litigation, submitted with Dr. Grande's appeal, a quorum of the USGC met approximately five (5) times between February and April 2012, after a February election by the Faculty Senate to fill three vacant seats. On February 12, the committee met in the presence of University counsel Angela D. Koshewa and staff member Connie Kidd to discuss the background and procedural history of Dr. Grande's grievance and the task the committee was required to perform. On March 8, the committee met again in the presence of Connie Kidd. On April 10 and approximately two other occasions prior to May 1, the committee met to discuss and deliberate on Dr. Grande's grievance.
Dr. Grande, through his counsel, submitted a complaint by e-mail to University President James Ramsey on May 15, 2012, alleging that the USGC had failed "to appropriately notice the date and time of the meeting that dealt with Dr. Grande's grievance matter." He complained that due to lack of notice he was unable to attend, and requested that violations of the Open Meetings Act be remedied to prevent the USGC's recommendation from being null and void. On May 18, 2012, University counsel Angela D. Koshewa responded:
The University does not agree with your position concerning the University Student Grievance Committee. This is a committee acting in a quasi-judicial capacity on an individual student matter protected by both state and federal law and which confidential student matter is not public business of the University. Assuming your position for the purpose of this response only, had a meeting of the committee been noticed as a public meeting, the committee, pursuant to KRS 61.810(1)(j), would have been authorized to deliberate in closed session without your client's being present. The committee's decision, favorable to your client, that he should be allowed to be heard before the unit grievance committee has been accepted by the President. It is the University's position that the unit committee may proceed.
This appeal was received by the Office of the Attorney General on July 18, 2012, and a response on behalf of the University was received from attorney Deborah H. Patterson on July 26, 2012.
It is undisputed that the Committee's meetings never complied with the provisions of the Open Meetings Act, including the public notice provisions and the procedure of convening in open session. The issue is whether they were required to do so.
It is not disputed that the USGC is a public agency. The fundamental mandate of the Open Meetings Act, codified at KRS 61.810(1), states that:
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[.]
Violation of the Open Meetings Act can thus result from a private meeting of a quorum of the members of an agency at which either public business is discussed or action is taken. KRS 61.820 requires a schedule of regular meetings of a public agency, if any, to be made available to the public, and for such meetings to be "held at specified times and places which are convenient to the public." Furthermore, KRS 61.823(3) requires written notice of any special meetings.
"Action taken" is defined in KRS 61.805(3) as "a collective decision, a commitment or promise to make a positive or negative decision, or an actual vote by a majority of the members of the governmental body." Therefore, the meeting at which the USGC made its collective decision or took a vote would fall within the mandate of KRS 61.810(1), subject to any exceptions under law.
"Public business," however, is not defined by the Open Meetings Act. According to the legislative statement of policy in KRS 61.800, "the formation of public policy is public business and shall not be conducted in secret." It is not the case, however, that public business is merely the formation of public policy. In 1994, this office gave an advisory opinion to the University of Kentucky in which we indicated that a University Senate and college and department faculties were "committees" subject to the Open Meetings Act, and in the context of such committees we discussed the meaning of "public business" :
Open meetings decisions have not yet dealt with the precise meaning of that term, but we anticipate that discussion of the following subjects would be considered public business:
. the expenditure of public funds;
. the scope or type of services offered by a public agency;
. regulations, policies, and procedures that affect the manner in which the public agency provides services to the public or complies with its statutory duties;
. personnel matters affecting the compensation, benefits, or duties of public employees.
Conversely, the following subjects are probably not public business:
. matters related to a specific situation involving a particular student , employee, faculty or senate member, or member of the public;
. casual conversations among faculty or senate members;
. matters that are purely internal to the faculty or senate itself, except matters involving the time or place of meetings.
It is of course possible that a meeting of any of the bodies discussed in this opinion would proceed without any action being taken and without any public business being discussed. Those meetings could be closed to the public.
OAG 94-25 (emphasis added). The University of Louisville urges that this standard should be applied to the business of the USGC, whose only purpose and competence is to deal with "matters related to a specific situation involving a particular student." According to this line of reasoning, meetings of the USGC would never be public because the committee never discusses "public business. "
Yet this argument does not take into account the fact that the USGC ultimately "take[s] action" by holding a vote or making a collective decision as to its recommendation to the President. It is not necessary that "action taken" relate to public business to bring a meeting within the provisions of the Act; 61.810(1) requires a public meeting whenever " any action is taken by the agency." (Emphasis added.) Furthermore, no actual decisions of this office or published court decisions have adopted OAG 94-25's position that "matters related to a specific situation involving a particular student" or other individual do not constitute "public business. "
In
Yeoman v. Commonwealth of Kentucky, Health Policy Board, 983 S.W.2d 459, 474 (Ky. 1998), the Kentucky Supreme Court held that, with regard to the short-lived Health Policy Board created by a 1994 statute, "[p]ublic business is the discussion of the various alternatives to a given issue about which the board has the option to take action." We have cited this definition with approval. See, e.g., 12-OMD-048 ( Yeoman "synthesizes some twenty-six years of open meetings decisions issued by the Kentucky Attorney General"); 09-OMD-093; 04-OMD-148. The University contends that a committee dealing with "a personal grievance raised by a student cannot be equated with" a board charged with regulating Kentucky's health care industry as in Yeoman, or investigating a state-licensed pharmacist as in 04-OMD-148, because the matter is private and because the USGC does not take "final action. " As we have stated, however, "action taken" need not be final action. Furthermore, while the privacy interests involved in student matters may be substantial, our decisions have not countenanced a definition of "public business" more restrictive than that used in Yeoman.
Having established that the meetings of the USGC involved public business and action taken, we turn to the University's argument that the meetings of the committee are not subject to the Open Meetings Act because all of its activities are subject to one or more of the exceptions listed in KRS 61.810(1). Subsection (1)(f) provides that the following need not be open to the public:
Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested.
The University argues that "[m]any of [the USGC's] meetings, like the meetings concerning Dr. Grande, are [exempt] because the discussion concerns the dismissal or discipline of a student." While we recognize that discussions of that nature would dominate the proceedings at such a meeting, we do not believe they would constitute the entirety of the proceedings. Nevertheless, KRS 61.810(1)(f) would potentially be a basis for going into closed session.
Subsection (1)(j) provides that the following need not be open to the public:
Deliberations of judicial or quasi-judicial bodies regarding individual adjudications or appointment, at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present, but not including any meetings of planning commissions, zoning commissions, or boards of adjustment.
The University contends that the USGC "functions as a quasi-judicial body whose sole function is to adjudicate student grievances, " and therefore the entirety of its meetings may be closed to the public. We are not convinced, however, that the committee's proceedings consist entirely of "deliberations. " At a minimum, there must be a determination that a quorum is present and a commencement of proceedings prior to the beginning of deliberations. Once deliberations begin, a closed session would be proper under KRS 61.810(1)(j).
Finally, subsection (1)(k) provides that the following need not be open to the public:
Meetings which federal or state law specifically require to be conducted in privacy.
The University argues that the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, prohibits discussion of personally identifiable information relating to a student, and therefore requires that such discussions be conducted in closed session.
In 97-OMD-139, we addressed the application of the Open Meetings Act to a university's Housing Appeals Committee in the context of KRS 61.810(1)(k) and FERPA. We first found that the Housing Appeals Committee was a public agency and its meetings were subject to the requirement that they be open to the public unless it could invoke a statutory exception. We then concluded that a meeting of the committee, once convened in public, could properly go into closed session to discuss student housing appeals:
FERPA regulates access to "education records," meaning records, files, documents, and other related materials which contain information that is directly related to a student and which are maintained by the educational agency or institution. 20 U.S.C. § 1232g(4)(A). The statute precludes the disclosure of personally identifiable student information to third parties in the absence of a parent or eligible student's prior written consent. It is also aimed at insuring the parents of a student, and the student himself if he is over eighteen, access to the student's education records.
20 U.S.C. § 1232g(b)(1) provides:
It is the opinion of this office that 20 U.S.C. § 1232g(b)(1) bars not only the release of education records, but also the disclosure of personally identifiable information in those records, including information relating to student housing, and specifically housing appeals. ?
[A]ccording to the federal regulations implementing FERPA disclosure means "to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means." 34 CFR Part 99.3. Clearly then, public discussion of personally identifiable information, including student housing information, is restricted in the same manner as release of records containing that information. Eastern Kentucky University risks the loss of federal funds if it engages in public discussion of these matters. Pursuant to KRS 61.810(1)(k), the Housing Appeals Committee may properly go into closed session to discuss housing appeals since federal law requires it to do so. See also KRS 160.720(2), the state analogue to the Family Educational Rights and Privacy Act, restricting "release or disclosure of records, reports, or identifiable information on students to third parties other than directory information ? without parental or eligible student consent."
We note, however, that as an eligible student, that is a student who is eighteen or is attending an institution of postsecondary education, [the appellant] may waive his privacy rights under FERPA by written consent, thus permitting public discussion of his housing appeal pursuant to 20 U.S.C. § 1232 g(d) and 20 U.S.C. § 1232g(b)(1). Obviously, the same is true of any other student who wishes his appeal to be heard in open session, and the University or the appeals committee should so notify the student in advance of his hearing. 34 CFR Part 99.7; 20 U.S.C. § 1232g(e). If, however, [the appellant's] appeal raises housing issues or evidence concerning other students, the Housing Appeals Committee would be bound by 20 U.S.C. § 1232g(b)(1) and therefore required to conduct the hearing in closed session.
Since Dr. Grande's grievance before the USGC pertains directly to academic matters, the information that would be discussed in the meetings is even more clearly "education records." Accordingly, we see no legal basis for distinguishing 97-OMD-139. See also 98-OMD-142 (same analysis applied to university's Financial Aid Professional Judgment Committee). The University would be within its authority under KRS 61.810(1)(k) to go into closed session to discuss the matter in order to comply with federal law. Furthermore, as the particular case apparently involved another student, Dr. Grande's accuser, a waiver of Dr. Grande's privacy rights alone would not suffice to keep the proceedings open.
Nevertheless, the applicability of an exception permitting discussion in closed session does not, as the University argues, take the committee entirely outside the scope of the Open Meetings Act. Any meeting of a quorum of the committee where public business is discussed or action is taken, as analyzed above, must still be convened in open session pursuant to KRS 61.810(1). Such meetings are subject to the notice provisions of KRS 61.823 for special meetings, or if and when regular meetings are ever held, the schedule provisions of KRS 61.820. If action is taken at the meeting, minutes are to be kept pursuant to KRS 61.835.
The University argues in its response that under KRS 61.815(2), because of the private nature of its business, the USGC is exempt from the procedural requirements of KRS 61.815(1) with regard to conducting closed sessions. We do not consider the committee's noncompliance with KRS 61.815(1) relevant to this appeal because it was not the subject of Dr. Grande's complaint. Rather, he complained about the lack of public notice of, and opportunity to attend, the committee's meetings. We therefore need not address at this time the University's arguments relating to the procedural requirements for going into closed session.
"The express purpose of the Open Meetings Act is to maximize notice of public meetings and actions. The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good."
Floyd County Board of Education v. Ratliff, 955 S.W.2d 921, 923 (Ky. 1997). For the reasons outlined above, we find that the University Student Grievance Committee violated the Open Meetings Act to the extent that it gave no public notice of its special meetings pursuant to KRS 61.823 and did not convene its meetings in open session pursuant to KRS 61.810(1). 1
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.
Distributed to:
J. Fox DeMoisey, Esq.Angela D. Koshewa, Esq.Deborah H. Patterson, Esq.
Footnotes
Footnotes
1 Although Dr. Grande has asked this office to declare the actions of the USGC null and void, such a remedy is not within the granted powers of the Attorney General under KRS 61.846(2).