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 Brandeis Law School Academic Grievance Committee ("Committee") violated the Open Meetings Act at its meeting held on December 13, 2011. The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, essentially argues that the Committee failed to hold an open meeting or to give public notice of its meeting.
On October 15, 2012, Dr. Grande complained in writing to University President James Ramsey pursuant to KRS 81.846(1), alleging that no notice was given of the meeting in question and that the meeting was not open to the public or to him personally. He proposed various means of remedying the alleged violation. On October 22, 2012, University Counsel Angela Koshewa responded: "The University does not concur in your interpretation of the Kentucky Open Meetings Act or your assertions relating thereto." Dr. Grande's appeal, through his counsel J. Fox DeMoisey, was initiated on or about December 17, 2012.
This office originally declined to rule on Dr. Grande's appeal because it was believed to involve the same entity at issue in 12-OMD-140, a decision which was the subject of ongoing litigation in the Jefferson Circuit Court. On or about February 25, 2013, Dr. Grande's appeal was resubmitted with the explanation that this Committee was not the same entity involved in the prior appeal. Since an error on our part prevented this matter from being heard originally, we hereby consolidate the two instances of this appeal and deem it to have been timely brought. 1
On March 5, 2013, Deborah H. Patterson, counsel for the University, responded to this appeal. She does not dispute that the Committee's meeting was not open to the public and did not comply with the public notice requirements of the Act. It is our opinion that the legal issues in this appeal are substantially identical to those we addressed in 12-OMD-140, 13-OMD-012, and 13-OMD-037. 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 Law School Academic Grievance Committee is subject to the Open Meetings Act and the meeting in question was conducted in violation of the Act to the extent that the Committee gave no public notice of its meeting pursuant to KRS 61.820 or 61.823 and did not convene its meetings in open session pursuant to KRS 61.810(1) 2 or comply with any other applicable procedural requirements of the Act.
As in Dr. Grande's previous appeals, 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.
Footnotes
Footnotes
1 The University of Louisville argues that our previous forbearance to decide this appeal cannot be reconsidered pursuant to 40 KAR 1:030, Section 4. In fact, that regulation only prohibits reconsideration of "a decision rendered," which did not occur in this case.
2 As we likewise concluded in 12-OMD-140, the Committee could subsequently go into closed session to conduct deliberations when appropriate under KRS 61.810(1)(j).