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 Arts and Sciences Student Grievance Committee ("Committee") violated the Open Meetings Act at meetings held on September 14, 2012, and November 30, 2012. 1 The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, essentially argues that the Committee failed to hold open meetings or to give public notice of its meetings.
On January 22, 2013, Dr. Grande complained in writing to University President James Ramsey pursuant to KRS 81.846(1), alleging that no notice was given of the two meetings in question and that the meetings were not open to the public or to him personally. He proposed various means of remedying the alleged violations. On January 25, 2013, University Counsel Angela Koshewa responded:
The University does not concur in your claim that the College of Arts and Sciences Student Academic Grievance Committee is subject to the Open Meetings Act requirements, including your claim of a right to individual notice under the Open Meetings Act. The committee serves in a quasi-judicial capacity dealing with confidential individual student matters, not public business. In addition and in the alternative, meetings of the committee fit within at least one exception in KRS 61.810, and the committee is excluded from the notice requirements of KRS 61.815(1) pursuant to KRS 61.812(2).
Dr. Grande's appeal, through his counsel J. Fox DeMoisey, was initiated on or about February 19, 2013.
On March 1, 2013, Deborah H. Patterson, counsel for the University, responded to this appeal. She does not dispute that the Committee's meetings were not open to the public and did not comply with the public notice requirements of the Act. She does allege, as a threshold issue, that the Committee is not a "public agency" within the meaning of the Open Meetings Act because it is not "established, created, and controlled by a 'public agency' " under KRS 61.805(2)(g). 2
The Committee is established under the bylaws of the College of Arts and Sciences pursuant to the University's procedure manual, known as the "Redbook." Its membership consists of three faculty members and three alternates chosen by the faculty of the College. "Department and program chairpersons, who are appointed by the Board of Trustees, are not eligible to serve on the Committee." Therefore, the University argues that the Committee is not controlled by the University, which must act through its Board of Trustees.
This argument overlooks KRS 61.805(2)(f), which provides that the definition of "public agency" also includes "[a]ny entity when the majority of its governing body is appointed by a 'public agency' as defined in [any other paragraph] of this subsection, a member or employee of a 'public agency, ' a state or local officer, or any combination thereof." (Emphasis added.) Presumably, faculty members of the College of Arts and Sciences are employees of the University. Since the members of the Committee are selected by a combination of University employees pursuant to the college bylaws and University policy, we find that the Committee is a "public agency" under KRS 61.805(2)(f).
Beyond this, it is our opinion that the legal issues in this appeal are substantially identical to those we addressed in 12-OMD-140 and 13-OMD-012. These decisions are attached and adopted as the basis for our reasoning in the present decision. Accordingly, for the reasons given in those prior decisions, we conclude that the Arts and Sciences Student Grievance Committee is subject to the Open Meetings Act and the meetings in question were conducted in violation of the Act to the extent that the Committee 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) 3 or comply with any other applicable procedural requirements of the Act.
As in 13-OMD-012, the university makes an academic privacy argument under the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, as applied to student academic matters. In this case, if no other students were involved in a particular meeting, Dr. Grande could keep the Committee's proceedings open by waiving his own privacy rights. If matters involving students other than Dr. Grande were to be discussed, however, the requirements of FERPA would permit the Committee to go into a closed session as outlined in 12-OMD-140, following the procedural requirements of KRS 61.815(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.
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