Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Meetings Decision
The threshold question presented in this appeal is whether the University of Louisville's Brandeis School of Law Honor Council ("the Honor Council") is a "public agency" subject to the Open Meetings Act. The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, appeals from an agency response dated January 8, 2013, to his open meetings complaint dated January 3, 2013. This appeal was initiated March 11, 2013, and Deborah H. Patterson, counsel for the University, responded on March 20, 2013.
The University's January 8 response, written by University Counsel Angela D. Koshewa, stated:
The University does not agree with your contention that the Law School Honor Council is subject to the Kentucky Open Meetings Act. The Honor [C]ouncil does not deal with "public business: within the ambit of the Open Meetings Act. It deals exclusively with student information that is and must remain private. Even if Open Meetings were to apply to the Honor Council, the meetings fall with [sic] the exceptions set forth in KRS 61.810(f), (j) and (k) and, pursuant to KRS 61.815(2) and would be exempt from the formalities usually required for closed meetings.
This appeal was initiated March 11, 2013, and Deborah H. Patterson, counsel for the University, responded on March 20, 2013. The appellant filed a reply on March 26, 2013.
Dr. Grande alleges that the Honor Council is a "public agency" under KRS 61.805(2)(g), which refers to:
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[.]
(Emphasis added.) The Honor Council is created by the Honor Code adopted by the Brandeis School of Law faculty on November 15, 1999. Its membership consists entirely of law students elected by their fellow students. Under the terms of the Honor Code, the Honor Council conducts hearings on alleged violations of the code and makes a recommendation to the law school dean as to whether a violation occurred and, if so, what sanction is appropriate. The dean then renders a final decision.
The University argues, in part, as follows:
The Board of Trustees has "established," "created," and "control[s]" several committees -- but the Honor Council is not among them. The Board of Trustees' Bylaws give the Board the authority to establish standing and ad hoc committees required to carry out its business. ? Members of these committees are appointed by the Board Chair upon recommendation from Board members, and the "charge" to each committee is determined by the Board Chair. Thus, these committees are unquestionably "established, created, and controlled" by the Board, and are therefore subject to the OMA.
The Board does not, however, "control" the Honor Council. The Council is established pursuant to the Law School Honor Code. It is made up entirely of elected student members. These members "control" the Honor Council. They are the individuals who hear complaints and make recommendations based on the evidence presented to them. They receive no input or oversight from the Board. Their recommendations are made independently and are not within the Board's "control." There is simply no way in which an independent, student-run adjudicatory body -- chosen entirely by students -- could be said to be within the "control" of the Board of Trustees.
We need not decide whether the Honor Council is "established" and "created" by a public agency, since the issue of control is dispositive.
There is no public agency that determines the outcomes of individual cases at the Honor Council level. Nothing in the record suggests that the recommendations of the Council are dictated or influenced by the will of the Board of Trustees or any other public agency. The members are students, elected by the student body. Furthermore, our review of the Honor Code indicates that the independence and impartiality of the Honor Council's decision-making is carefully protected. Thus we distinguish this case from 11-OMD-157, where the University was found to exercise "broad control over all appointments to the [University Medical Center's] Board [of Directors] through its president, or his designee" and required the Medical Center to get its approval before making various types of decisions.
In a reply dated March 26, 2013, Dr. Grande argues that "all governance elements of the University are extensions of the Board of Trustees by specific grant and delegation of its statutory authority, operating through such organizational documents as the Bylaws , The Redbook , and so forth" (emphasis in original), and thus the Honor Council is inherently "controlled" by the Board of Trustees "by delegation of authority and ultimate supervision." This argument essentially asserts that to create is to control, insofar as agents of the University establish procedural rules followed by the Honor Council. We do not construe KRS 61.805(2)(g) in such a broad manner. We consider "control" in a substantive sense, as a matter separate and distinct from the creation and establishment of an entity. Nothing in the record suggests that the independence of the Honor Council's decision-making process would be compromised by any outside influence. Therefore, we find that the Honor Council is not "controlled" by a public agency and therefore is not itself a public agency under KRS 61.805(2)(g).
While Dr. Grande alleges solely paragraph (2)(g) as the basis for his appeal, we note that we are further unable to find any other paragraph of KRS 61.805(2) under which the Honor Council would constitute a "public agency. " Accordingly, the Honor Council is not subject to the Open Meetings Act. 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
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