Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Meetings Decision
The question presented in these consolidated appeals is whether two groups comprised of members of the University of Louisville Department of Urban and Public Affairs (DUPA) faculty, designated as "Faculty Ph.D. Comp Exam Committee[s]"# 1 and # 2 by complainant Dr. Christopher Grande, violated the Kentucky Open Meetings Act in conducting a nonpublic meeting(s) between May 16, 2012, and June 1, 2012, in the former case, and between August 8, 2012, and August 16, 2012, in the latter case, that failed to conform with relevant provisions of the Open Meetings Act, including, but not limited to KRS 61.835. To remedy the alleged violations, Dr. Grande proposed that University President James Ramsey, "as the 'presiding officer' of the University," void actions taken during those meetings for which proper notice was not provided, thereby depriving DUPA students and/or any member of the general public of the opportunity to attend, "and/or which have otherwise been conducted in a manner substantially inconsistent with, and not in substantial compliance with, the provisions" of the Act. In timely and identical responses dated October 17 and 24, University Counsel Angela Koshewa responded to Dr. Grande's nearly identical October 14 and 21 complaints on behalf of the President, asserting that Mr. Grande had not stated the circumstances which constituted a violation(s) of the Act per KRS 61.846(1). Ms. Koshewa advised that his "note" concerned what he identified "as the 'Faculty UPA PhD Comp Exam Committee,' several faculty who come together for the purpose of grading a comprehensive exam or exams. " The grading of an examination, she continued, "is not public policy or public business under KRS 61.800; nor are these faculty acting as a group to grade an examination created, established and controlled by the Board of Trustees of the University. "
By letters dated October 21 and 28, Dr. Grande, acting through his legal counsel J. Fox DeMoisey, initiated the instant appeals, identified as Log Nos. 201300392 (Committee # 2) and 201300408 (Committee # 1), requesting a decision(s) holding that each "SUPA/DUPA Faculty 'UPA Ph.D. Comp Exam Committee" is "a 'public agency' required to conform to the statutory directives of" the Open Meetings Act, "and therefore, has acted in violation of same." Inasmuch as the Attorney General recently determined that neither the DUPA Program Faculty (13-OMD-176) nor the "Ph.D. Program Faculty" (13-OMD-177) is "performing public business, " and thus neither is subject to the Open Meetings Act, it follows that neither group comprised exclusively of DUPA Faculty members, i.e., "UPA Ph.D. Comp Exam Committee," is a "public agency" within the meaning of KRS 61.805(2)(g), nor does either Comp Exam Committee qualify under any of the other definitions codified at KRS 61.805(2).
Upon receiving notification of Mr. Grande's appeals, Deborah H. Patterson, Wyatt, Tarrant & Combs, LLP, responded to each by letters dated November 1 and 5, respectively, on behalf of the University. Ms. Patterson initially advised that each "group consists of faculty members in the Department of Urban and Public Affairs who work together to review and evaluate students' written examinations." 1 The University maintained that neither "group" is a "public agency" within the meaning of KRS 61.805(2) because said group(s) "is not the University's policy-making body, nor is this group 'created, established, and controlled by that body - which, in the University's case, is its Board of Trustees." In terms of background, Ms. Patterson explained that students enrolled in the DUPA Ph.D. program are "required to take and pass a 'Qualifying or 'Comprehensive' Exam, which typically occurs at the end of their second year of study. The exam questions are written and the exams graded by a group of faculty members who are appointed by the Ph.D. Program Director." The group typically meets in person "to discuss their evaluations of the student exams they have been asked to grade" and to determine the final marks for the exams.
Quoting the definitions of "public agency" codified at KRS 61.810(2)(d), (f), and (g), Ms. Patterson advised that the "policy-making Board at the University of Louisville is its Board of Trustees. See KRS 164.821; KRS 164.830; see also 95-ORD-71 (recognizing that Board of Trustees at the University of Kentucky is the 'policy-making board' of the University)." 2 Accordingly, she reasoned, "an entity within the University may be subject to" the Open Meetings Act only if the entity is "a 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' that is 'established, created, and controlled' by the Board of Trustees or if the majority of the entity's governing body is appointed by the Board." The groups of employees that comprise "Exam Committee # 1" and "Exam Committee # 2" are not "established, created, and controlled" by the Board of Trustees; neither group is chosen by the Board nor does the Board "have any direct control" over the actions of either group/Committee. 3 Rather, Ms. Patterson explained, "Comprehensive Exam Committees are normally chaired by the Ph.D. Program Director. The Program Director then chooses the members from within the program faculty. " The faculty members who comprise the "Comp Exam Committee[s]," she advised, "convene on an as-needed basis to carry out the administrative functions of their department, but do not do so pursuant to any specific demand by the Board of Trustees."
For the foregoing reasons, the University concluded that neither of the DUPA Comp Exam Committees is "established, created, and controlled" by the policy-making board of the University, and, therefore, meetings of the Committees are not subject to provisions of the Open Meetings Act, citing 04-OMD-082 in support of its position. Relying upon 95-OMD-71 (holding that KRS 61.805(2)(f) was "inapposite" because "there is no 'governing body' for either of the disputed groups"), the University further asserted that KRS 61.805(2)(f) does not apply given that Comp Exam Committees do not have a governing body. In responding to Log No. 201300408 (Committee # 1), the University cited 13-OMD-176 and 13-OMD-177, rendered on October 29, 2013, in further support of its assertion that neither Comp Exam Committee can be properly characterized as a "public agency" for purposes of the Open Meetings Act. "Exam grading is not public policy, " the University maintained, "and the meetings of the UPA Comprehensive Exam Committees are not subject to the OMA." When viewed in light of those recent decisions, the record on appeal validates the University's position.
For purposes of the Open Meetings Act, "public agency" is expansively defined at KRS 61.805(2) as:
(a) Every state or local government board, commission, and authority;
(b) Every state or local legislative board, commission, and committee;
(c) Every county and city governing body, council, school board, special district board, and municipal corporation;
(d) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(e) Any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency, " a state or local officer, or any combination thereof;
(g) 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; and
(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection[.]
Subsections (a)-(c) and (h) are facially inapplicable to members of the DUPA Program Faculty. KRS 61.805(2)(f) is also inapplicable insofar as the "groups" or "Comp Exam Committees" do not have a "governing body. " Both KRS 61.805(2)(d) and (e) are inapposite as the groups of DUPA Faculty members discharging their administrative functions were not created by or pursuant to statute, order, ordinance, resolution, or other legislative act. Finally, the Committees do not fall within the parameters of KRS 61.805(2)(g).
Of particular significance on the facts presented, this office has analyzed the extent to which the Open Meetings Act "reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees." OAG 94-25, p. 2. In so doing, the Attorney General found guidance in published opinions from other jurisdictions with similar laws, proceeding on the following premise:
Our open meetings law is intended to provide public access to meetings of decision-making bodies, and it is not intended to provide public access to the day-to-day administrative work of a public agency. This approach "avoids the crippling consequences of placing unjustifiable impediments on achieving day-to-day administrative efficiency." Tribune Publishing Company v. Curators of University of Missouri, 661 S.W.2d 575, 585 (Mo. Ct. App. 1983). 4
Id. at 3. More recently, this office was recently asked to determine whether the University's DUPA Faculty and/or Ph.D. Program Faculty were public agencies whose meetings were subject to provisions of the Open Meetings Act.
Quoting the definition of "public meeting" codified at KRS 61.810(1), this office endeavored to determine "at what point in the administrative layering of a University, the Open Meetings Act no longer applies." 13-OMD-176, p. 4; 13-OMD-177. If the work being done by the UPA Faculty is " too remote from the decision making process," this office concluded, the Act is not implicated. Id., p. 5 (original emphasis); 13-OMD-177. Given the Faculty's "limited ability to authorize public policy changes, its focus on administrative duties, and the oversight of other bodies," the Attorney General ultimately determined, "the analysis in advisory OAG 94-25 notwithstanding," that the Faculty "is not performing public business. As such, it is not subject to the Open Meetings Act. " Id., pp. 5-6; 13-OMD-177. Inasmuch as the DUPA Faculty/ Ph.D. Program Faculty is not a "public agency, " and the DUPA "Comp Exam Committees" were thus not "established, created, and controlled by a 'public agency, '" KRS 61.805(2)(g) is also inapplicable. 5 Consideration of the University's remaining arguments on appeal is therefore unnecessary. Because the Committees do not fall within the definition of "public agency" codified at KRS 61.805(2), they were not required to conduct their meetings in accordance with the provisions thereof; accordingly, the Committees cannot be said to have violated 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:
Christopher M. GrandeJ. Fox DeMoiseyJames R. RamseyAngela D. KoshewaDeborah H. Patterson
Footnotes
Footnotes
1 Ms. Patterson advised that "'Comp Exam Committee # 1' apparently refers to those graders who reviewed his May 2012 exam; 'Comp Exam Committee # 2' apparently refers to those graders who reviewed his August 2012 exam." It was unclear, she observed, "why Dr. Grande chose to bring his complaint for 'Comp Exam Committee # 2 before his complaint for 'Comp Exam Committee # 1."
2 The University correctly observed that none of the other definitions codified at KRS 61.805(2) apply here.
3 The University noted that the Board "has created and controls a number of committees, but the UPA Ph.D. program faculty is not among them." A review of the Bylaws for the Board of Trustees and the Appendix thereto, a copy of which Ms. Patterson attached to her November 1 appeal response, verified this assertion.
4 In Tribune Publishing Co., above at 585, the Court observed:
Securing government accountability at the decisional level is one thing. Adversely affecting administrative efficiency at the non-decisional level is quite another thing. It is inconceivable that the salutary goal of letting the "sunshine" in on meetings of "public governmental bodies" envisioned elimination of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions.
5 Compare 97-OMD-139 (Housing Appeals Committee at Eastern Kentucky University is a public agency pursuant to KRS 61.805(2)(g) and its meetings are open to the public unless one or more exceptions found at KRS 61.810(1) applies); 99-OMD-77 (budget committee appointed by Franklin County Fiscal Court is a public agency pursuant to KRS 61.805(2)(g) as the advisory committee was established, created, and controlled by a public agency); 13-OMD-012; 13-OMD-037; 13-OMD-040.