Request By:
James T. Ahler
Executive Director
State Board of Accountancy
332 West Broadway
Louisville, Kentucky 40202
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this Office regarding two matters. The questions you have asked are as follows:
1. Whether final disciplinary actions taken by the state's licensing boards or agencies against licensed professionals are public information.
The minutes of an open meeting of a state board or agency must set forth the action taken at a meeting. KRS 61.835. The minutes are to be recorded and the records must be open to public inspection. Id; KRS 61.872. The public, upon request, has a right to know the final action taken by a state board or agency. City of Louisville v. Courier Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982).
2. Whether the state can and would indemnify a public, non-profit organization against libel suits arising from the publication of final disciplinary actions received from a licensing board.
Assuming the General Assembly approved the expenditure of funds for this purpose, the enactment of legislation would contravene Kentucky Constitution § 50 1 and § 177. 2 In McGuffey v. Hall, Ky., 557 S.W.2d 401 (1977), the Supreme Court declared unconstitutional a statute requiring the Kentucky Patients' Compensation Fund to pay malpractice judgments against the Fund's members (every licensed Kentucky physician and hospital) in excess of basic insurance coverages; upon exhaustion of the Fund's resources, claims were to be paid out of the general fund of the Commonwealth. The statute violated Constitution § 50 which prohibits any "agency of the state, including its legislature" from placing "an obligation against the general funds otherwise available for appropriation and expenditure by a future legislature." 557 S.W.2d at 409. Legislation indemnifying the Council of State Governments against judgments resulting from suits for defamation would produce the same result. A commitment against future general revenues cannot be made without a vote of the people. Id. The reason for the restriction against obligating future general revenues is to ensure that each generation is "free to make its own trades with its own money." 557 S.W.2d at 410.
Such legislation would also violate Constitution § 171 which prohibits lending the credit of the Commonwealth. "The state cannot now loan or give its credit to any person or corporation for any purpose - public or otherwise." McGuffey v. Hall, supra at 410, quoting Hager v. Kentucky Children's Home Soc., 119 Ky. 235, 83 S.W. 605, 607 (1904). By becoming a surety for the Council, the Commonwealth would be lending credit. The "credit" provision of Constitution § 177 "seeks to prevent transactions that might result in future liabilities against the general resources of the state and thereby encroach upon the freedom of another generation to utilize those resources as it then deems necessary or appropriate." McGuffey v. Hall, supra at 411. Any attempt to underwrite the Council through recourse to the general fund of the state creates a debt in violation of Constitution § 50 and lends credit of the state in violation of Constitution § 177.
Finally, payment of private claims would violate Constitution § 171 which requires that public funds be used only for public purposes. McGuffey v. Hall, supra.
You have also asked if the Office of the Attorney General plans to participate in the National Disciplinary Information System on behalf of all state boards and agencies. This Office has no such plans at this time.
We trust this information has satisfactorily answered your questions. If you have any additional questions, please contact us.
Footnotes
Footnotes
1 "No act of the General Assembly shall authorize any debt to be contracted on behalf of the Commonwealth . . . unless provision be made therein to levy and collect an annual tax . . . to discharge the debt within thirteen years; nor shall such act take effect until it shall have been submitted to the people at a general election . . . ." etc.
2 "The credit of the Commonwealth shall not be given, pledged or loaned to any individual company, corporation or association, municipality, or political subdivision of the state . . . ."