Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Meetings Decision
The issue presented in this appeal is whether the Council on Academic Affairs, Eastern Kentucky University ("Council"), violated the Open Meetings Act when it met on March 29, 2018, and voted on recommendations for suspending programs within Eastern Kentucky University ("EKU"). For the reasons that follow, we find that the Council did not violate the Open Meetings Act.
Nancy McKenney, Co-Vice President, EKU Chapter of the American Association of University Professors ("Appellant") sent an undated letter to Dr. Deborah Whitehouse, Interim Senior Vice President for Academics & Provost, stating that she (Appellant) had received complaints from faculty who attended the March 29, 2018, meeting of the Council. The complaints were that the Council did not record, or provide records of, the votes taken on each proposed program suspension. Appellant requested that she be provided with a record of all votes taken at the meeting, including the names of those who voted and how they voted. 1 Ms. Victoria Long, Office Associate, Office of University Counsel, responded to the letter on May 2, 2018, asserting that the Open Meetings Act does not apply to the Council because it is not a "public agency" as defined by the Act and therefore did not violate the Act in the March 29 meeting. Ms. Long explained that the Council consists of appointees of the Provost to oversee and advise or recommend on academic issues, including programs and curriculum. "The [Council] has no final decision making authority, and is remote from the final decision, which lies with the Board of Regents and the Council on Postsecondary Education, in some cases." Ms. Long also stated that the Council is not grounded in statute, executive order, regulation, or resolution of any kind, and so does not meet the requirements of a public agency under the Act. Appellant appealed that response to our office, arguing that the Council is a public agency as defined by KRS 61.805(2)(g) 2 and that it is required to comply with the Act's requirement at KRS 61. 61.835 3 for recording the votes and actions taken at the Council's meetings. On May 18, 2018, Josh Salsburey, attorney, responded on behalf of EKU, reiterating and expanding on the points made in EKU's response to Appellant's complaint. 4
Analysis : KRS 61.810(1) provides that "all meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times." "Public agency" includes "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. " KRS 61.805(2)(d). It includes "any entity when the majority of its governing body is appointed by a 'public agency, ' . . . a member or employee of a 'public agency. '" KRS 61.805(2)(f). It also includes "any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency . . . established, created, and controlled by a 'public agency. '" KRS 61.805(2)(g).
The Kentucky Supreme Court concluded in
Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884 (Ky.1987), that any committee or subcommittee established by a public agency that is created by statute is itself a public agency. However, the Open Meetings Act, particularly KRS 61.805(2), has been substantially amended since then and neither that case nor any subsequently reported court decision has dealt with 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.
Appellant cited to OAG 94-25 as support for its position that the Council is a public agency. In OAG 94-25, an advisory opinion, 5 we provided guidelines for when an entity qualifies as a "public agency. " We advised that "the phrase 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' refers to . . . 'a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it.'" Id. In further support of its position that the Committee meets the framework set forth by OAG 94-25, Appellant cited to a recent Open Meetings Decision (17-OMD-207) where a build-to-suit committee of the Finance and Administration Cabinet was found to be a public agency. However, the analysis set out in OAG 94-25 was not meant to be applied without reference to the facts of each case. See generally 16-ORD-101. "OAG 94-25 presumes a case-by-case application of general principles to individual committees." Id. In 17-OMD-207, for example, the language of KRS 61.805(2)(e) also factored into the analysis because the build-to-suit committee was a "body created by or pursuant to state or local statute. "
In OAG 94-25 we also stated that the Open Meetings Act is intended to provide public access to meetings of decision-making bodies but it is not intended to provide access to the day-to-day administrative work of a public agency. We also noted that at some point the level of subdelegation is reached at which the work being done is too remote from the decision making process to invoke the public interest secured by the Open Meetings Act. OAG 94-25, p.3. We must determine at what point in the administrative layering of a university the Open Meetings Act no longer applies. 6 As stated in advisory OAG 94-25, if the work being done by the Committee is too remote from the decision making process, the Open Meetings Act is not implicated. Such is the case with the Council.
EKU explained that the Council's functions are limited to reviewing and recommending policies affecting curriculum, academic programs, and/or academic requirements. In these matters, the Council's "recommendations are first reviewed by the Faculty Senate. Only then are the [Council's] recommendations presented to the President of the University and the Board of Regents. Thus, only the Board of Regents has final decisionmaking authority . Further, certain curricular and program changes require another layer of external approval from the Council on Postsecondary Education." (Emphasis added.)
In 95-OMD-71, in which the Prestonsburg Community College President's Cabinet was found not to be a public agency, we reasoned that:
The President's Cabinet at Prestonsburg Community College exists at the sole discretion of the President of the college, and its composition, role, and use are defined by the President. Its members include the deans of the college, the public relations director, and other employees who participate on an "as needed" basis. It functions as an informal working group. It is not grounded in statute, executive order, regulation or resolution of any kind, and was created as "a mechanism by which those who report to the President can meet for discussion and coordination of their respective duties and responsibilities to the College, [thus facilitating] the work of the President as chief administrator and operating officer of the college."
Id. 7
Like the President's Cabinet in 95-OMD-71, the Council is not required to be created by law or by any of EKU's governing documents. Its members are chosen by the EKU Provost, not by the EKU Board of Regents. The Council functions to advise the Board of Regents, and does not have authority to take any action. The Attorney General has stated that if a committee without authority to take action "is not grounded in statute, executive order, regulation or resolution of any kind," then that committee is not a public agency and therefore is not subject to the Open Meetings Act.
In 17-OMD-264, we reviewed whether the Western Kentucky University ("WKU") Budget Council was a public agency. We determined that it was not required to be created by law, or WKU's governing documents, and its members were chosen solely at the discretion of the WKU President, not by the WKU Board of Trustees or any other governing entity of WKU. The Budget Council functions as an informal working group to advise the President, and does not have any authority to take any action. See 13-OMD-176 (University of Louisville Department of Urban and Public Affairs public policy authority was ultimately delegated to the university's Faculty Senate and Board of Trustees); 04-OMD-082 (High school faculty was not a public agency as site-based council operated as governing body of the high school.)
Much like the WKU Budget Council in 17-OMD-264, the Council is not created by the Board of Regents or by legislative act, but by a single person, the Provost. The Council merely functions to advise the Board of Regents, with no policy or decision-making authority. The Council is therefore not a public agency. Accordingly, the Council did not violate the Open Meetings Act in its meeting of March 29, 2018, in its method of voting.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 61.846(1) requires that the "complaint shall state the circumstances which constitute an alleged violation of KRS 61.805 to 61.850 and shall state what the public agency should do to remedy the alleged violation." Our understanding of the complaint is that the remedy requested was to provide the "record of all votes taken at the meeting, including the names of those who voted and how they voted."
2 KRS 61.805(2)(g) defines a "public agency" as: "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[.]"
3 KRS 61.835 requires: "The minutes of action taken at every meeting of any such public agency, setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body."
4 Appellant also reiterated and expanded upon her arguments in correspondence to this Office, dated May 22, 2018.
5 OAG 94-25 expressly stated that "this opinion is not an open meetings decision and consequently does not carry the force of law."
6 As we stated in advisory OAG 94-25: "In KRS 61.805(2)(g), 'public agency' is defined to include any 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' of a public agency. This recursive definition is not particularly helpful in determining the point at which a group of public officials ceases to be a public agency. A governing board creates a committee, and the committee creates a subcommittee; because a committee is a public agency, the subcommittee becomes a committee of a public agency and thus is itself a public agency. And so on. Strictly applied, the statutory definition creates an endless loop from which there is no exit for the performance of delegated administrative duties . Logic and common sense demand that a certain level of subdelegation be reached at which the work being done is too remote from the decision-making process to invoke the public interest secured by the open meetings law." (Emphasis added).
7 95-OMD-71 noted that "because there is no 'governing body' for either of the disputed groups, KRS 61.805(2)(f) is inapposite." The record does not reflect, nor does the Appellant assert, that the Council has a "governing body," and so we likewise find that KRS 61.805(2)(f) is inapposite.
8 Compare 95-OMD-71, with Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884, 886 (Ky. 1987) ("The Board of Trustees of the University of Kentucky is created by statute--viz., KRS 164.130, et seq --so that the Presidential Search Committee, which was created, in turn, by formal action of the Board of Trustees, is a public agency and therefore subject to the provisions of KRS 61.805 et seq .").