Request By:
Senator Richard L. Roeding
Legislative Research Commission
700 Capitol Avenue
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested an opinion from this Office on a question arising under the Open Meetings Act, KRS 61.805, et seq. Specifically, you ask whether the Formulary Subcommittee of the Advisory Council for Medical Assistance may properly conduct closed meetings immediately before their regular public meetings to discuss and vote on the approval of drugs for the Medicaid Formulary.
KRS 205.540 provides for the establishment of the Advisory Council of Medical Assistance, consisting of seventeen members, to advise the Cabinet for Human Resources on issues relating to health and medical care services. Pursuant to KRS 205.540(4), the Council must meet at least once every three months, and may hold "such other special or regular meetings as may be desired." The Formulary Subcommittee is a standing committee which has existed since the inception of the Council. Its members are appointed by the Council's chairperson and its purpose is to recommend to the Council and the Cabinet what drugs should be included on the Medicaid Formulary. Although the subcommittee votes on whether to recommend a drug for inclusion, the final decision rests with the Commissioner for Medicaid Services.
You indicate that it has been the practice of the Formulary Subcommittee to hold a closed meeting prior to its regular public meeting. You question the propriety of these closed meetings. Based upon the facts you have presented, and for the reasons set forth below, we conclude that such meetings are improper under the Open Meetings Act.
KRS 61.805(2) defines a public agency as:
[A]ny state legislative, executive, administrative or advisory board, commission, committee, policy making board of an institution of education or other state agency which is created by or pursuant to statute or executive order (other than judicial or quasi-judicial bodies); any county, city, school district, special purpose district boards, public commissions, councils, offices or other municipal corporation or political subdivision of the state; any committee, ad hoc committee, subcommittee, subagency or advisory body of a public agency which is created by or pursuant to statute, executive order, local ordinance or resolution or other legislative act . . .;
Prior to 1987, this provision was interpreted to exclude advisory bodies which lacked power to affect policy or make appointments. See, e.g., OAG 82-331. In that year, the Kentucky Supreme Court issued an opinion in which it held that a public agency is an agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987). The Formulary Subcommittee falls squarely within the parameters of this definition, and is a public agency within the meaning of KRS 61.805(2).
The second issue which confronts us is whether the matters discussed by the Subcommittee in its closed session fall within one of the recognized exceptions to the Open Meetings Act found at KRS 61.810. A review of these exceptions demonstrates that discussions pertaining to the approval of drugs for the Medicaid Formulary do not fall within any of these exceptions. Unless federal or state law specifically require that the meetings be conducted in closed session, bringing them under the exception found at KRS 61.810(10), they must be conducted publicly. We are unable to locate any authority, state or federal, requiring these discussions to be held privately, and you cite no such authority. Absent such authority, we must conclude that these closed sessions are improper under KRS 61.810.