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 Residency Review Committee ("RRC") violated the Open Meetings Act at various meetings held between February 2010 and April 2012. The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, is a student contesting his classification by the University as an out-of-state resident. He argues that he should have been given notice of any and all meetings of the RRC pursuant to the Open Meetings Act so that he could attend. Additionally, he argues that at the one meeting he was allowed to attend, unlawful closed-session discussion occurred.
The RRC is an entity mandated by 13 KAR 2:045, Section 13(2), "to consider appeals of residency determinations by the residency appeals officer" and to "make a determination of student residency status and notify the student in writing within forty-five (45) days after receipt of the student appeal." Pursuant to University policy, the committee is appointed by the Executive Vice President and Provost, or designee, and consists of four faculty/ staff members and one student member. The faculty/ staff members serve staggered two-year terms and the student member serves for one year.
It appears from the record that a quorum of the RRC met approximately six (6) times during the period in question to consider a succession of appeals from Dr. Grande concerning his residency status. Only once, after the intervention of University President James Ramsey, was Dr. Grande allowed to attend a meeting of the Committee, which was held on April 19, 2012.
Dr. Grande submitted a complaint by e-mail to President Ramsey on October 25, 2012, alleging the following:
A) [S]ince the very first meeting of the RRC that involved me I have been denied access to the meetings of the RRC when meetings are being held with respect to matters that concern me on at least five (5) prior occasions other than the sixth occasion when I contacted you on Monday, April 2, 2012, to appeal of [ sic ] the decisions of Joe Dablow and Dale Billingsley violating KOMA [i.e., the Kentucky Open Meetings Act] ?
B) ? Subsecquently, on Friday, April 6, 2012, you rendered a decisions [ sic ] that over-ruled the prior erroneous decisions of Joe Dablow and Dale Billingsley, which had been violating KOMA, and allowed me to attend the sixth meeting of the RRC that concerned me?
C) It is worth noting that during the meeting of the Residency Review Committee (RRC) held on April 19, 2012, (the attendance at which meeting had been granted by University President James Ramsey pursuant to an appeal to allow my attendance at a supposedly otherwise "closed meeting," as per the provisions of KRS 61.846) the University Counsel was observed issuing ex parte instructions to the RRC in an unlawful "closed session. "
D) As per the Kentucky Open Meetings Act (codified as KRS 61.805-61.850), I also assert that any actions taken by the RRC at any meetings that concern me, and of which I have not been duly noticed and/or which I have been denied an opportunity to be present, are voidable.
E) Therefore, I respectfully also ask that you, as the "presiding officer" of the University, void those actions of the RRC taken at meetings which occurred, of which I was not noticed and/or regarding which I was not afforded an opportunity to be present, that is, those meetings of the RRC being held with respect to matters that concern me, as per the enforcement provisions of KOMA.
F) Further, I respectfully ask that you, as the "presiding officer" of the University, enforce all other provisions of KOMA with respect to all meeting [ sic ] held at the University, and in this particular instance with respect to all meetings of the RRC[.]
On May 18, 2012, University counsel Angela D. Koshewa responded:
The University does not concur in your interpretation of the Kentucky Open Meetings Act, your assertions relating thereto and does not believe you have stated a cognizable complaint under the Act.
This appeal was received by the Office of the Attorney General on January 2, 2013, and a response on behalf of the University was received from attorney Deborah H. Patterson on January 9, 2013.
The University does not dispute Dr. Grande's basic assertion that the Committee's meetings did not comply with the provisions of the Open Meetings Act, including the public notice provisions, the public nature of the meetings, and the procedures to be observed in conducting a closed session. The issue, as in our recent decision 12-OMD-140, is whether they were required to do so.
In substantial part, the arguments made by the parties are identical to those made in 12-OMD-140 concerning the University of Louisville's Student Grievance Committee. To avoid needless duplication of analysis, we attach a copy of that decision and hereby adopt its reasoning as the basis of our present decision, insofar as the issues are the same. 1 As we concluded in 12-OMD-140, a committee of the University is a "public agency" under KRS 61.805(2) and matters within its jurisdiction constitute "public business" within the meaning of KRS 61.810(1). Any meetings of such a committee at which public business is discussed or action is taken are public meetings subject to the notice requirements of KRS 61.820 and 61.823, unless otherwise provided by law.
In addition to its arguments in the prior appeal, the University now cites the case of
Cunningham v. Whalen, 373 S.W.3d 438 (Ky. 2012), decided since 12-OMD-140, for the proposition that the Residency Review Committee, as a quasi-judicial body conducting deliberations, is entirely "exempt [ed] from the requirement of public meetings" under KRS 61.810(1)(j). We have already had occasion to interpret the Cunningham case, and have not construed it so broadly.
"[T]he basic policy of [the Open Meetings Act] is that the formation of public policy is public business and shall not be conducted in secret and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed." KRS 61.800. This office, accordingly, has already rejected an overly broad interpretation of the Supreme Court's holding in Cunningham, and has construed the decision as limited to the factual situation of a settlement conference. In 12-ORD-179, a copy of which is attached hereto, we stated:
Cunningham v. Whalen stands for the limited proposition that a public agency may, under authority of KRS 61.810(1)(c), and KRS 61.815(1) notwithstanding, privately conduct a "settlement conference in litigation" as long as the agency conducts a public vote to accept or reject the resulting settlement agreement.
As we observed in footnote 2, the Cunningham decision "did not exclude general 'discussions of proposed or pending litigation' from the KRS 61.815(1) requirement of 'specific and complete notification in the open meeting of any and all topics which are to be discussed.'" 12-ORD-179, n.2. Still less did it exclude other categories of discussions from those procedural requirements. Such an exclusion would have necessitated the overturning of a substantial body of precedent sub silentio, which had not even been addressed in the case before the Court. See, e.g.,
Carter v. Smith, 366 S.W.3d 414 (Ky. 2012);
Floyd County Bd. of Education v. Ratliff, 955 S.W.2d 921 (Ky. 1997); see also, e.g., 09-OMD-132; 08-OMD-113; 02-OMD-200.
Consistently with our recent interpretation of Cunningham, then, we adopt the reasoning in 12-ORD-179 and reiterate our view that the holding of that case merely recognizes a narrow exception for settlement conferences to the general applicability of KRS 61.815(1). Accord, 12-OMD-202. Therefore, we do not find the RRC or its meetings exempt from any of the procedural requirements of the Open Meetings Act.
The University also argues that Dr. Grande's complaint under the Open Meetings Act was "procedurally deficient" under KRS 61.846(1) because it was "not submitted to the presiding officer of the RRC"; did not "identify specific meetings at issue"; sought individual notice of meetings rather than public notice; and did not properly request a remedy because the law does not mandate the specific remedies he requested. We do not regard these purported deficiencies as material. The RRC is a committee of the University under the direct authority of its President, who had in fact intervened on Dr. Grande's behalf to allow him to attend a meeting of the RRC. Also, Dr. Grande's complaint identified the meeting on April 19, 2012, as well as the Committee's extensive history with his residency issues. As to notice, the Committee's compliance with the public notice requirements of the Open Meetings Act would provide Dr. Grande with all the notice necessary to attend a meeting. Finally, the failure to ask for a specific remedy is not a failure to ask for any remedy at all. We find the complaint in substantial compliance with KRS 61.846(1.) 2
For the reasons outlined above, and in our prior decisions adopted herein, we find that the University Residency Review Committee violated the Open Meetings Act to the extent that it gave no public notice of its meetings pursuant to KRS 61.820 or 61.823 and did not convene its meetings in open session pursuant to KRS 61.810(1) or comply with any other applicable procedural requirements of 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.
Distributed to:
J. Fox DeMoisey, Esq.Angela D. Koshewa, Esq.Deborah H. Patterson, Esq.
Footnotes
Footnotes
1 One argument reiterated from 12-ORD-140 is the University's privacy argument under the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, as applied to student residency matters. We note that in this case, assuming no other students were involved, Dr. Grande could keep the RRC's proceedings open by waiving his own privacy rights.
2 The University further attempts to argue that Dr. Grande's appeal is untimely under KRS 61.846(2) because he did not seek review from the Attorney General within 60 days after various prior events, such as an oral denial of his oral request to attend a meeting of the RRC. Since these arguments are fundamentally incongruous with the University's position that Dr. Grande's October 25 complaint was procedurally deficient, we are indisposed to accept them.