Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the Kentucky Board of Emergency Medical Services - Preliminary Inquiry Board ("PIB") violated the Kentucky Open Meetings Act in holding a closed session to conduct deliberations regarding Case Number 2012-036 (individual adjudication) under authority of KRS 61.810(1)(j) during a special meeting on February 20, 2013. The PIB is a "public agency" within the meaning of KRS 61.805(2)(e). See 06-OMD-262. Neither the "person involved, nor his representatives, nor any other individual not a member of the agency's governing body or staff" was present during the February 20 closed session; accordingly, the PIB properly relied upon KRS 61.810(1)(j).
By letter directed to Cam Cantrill, Kentucky Community and Technical College System Legal Department, 1 on February 21, 2013, J. Robert Cowan submitted a complaint on behalf of his client, Emergency Medical Training Professionals, LLC ("EMTP"), regarding the closed session held on February 20, 2013, by the PIB. In support of his argument, Mr. Cowan primarily relied upon 06-OMD-262 (holding that PIB is a "public agency" per KRS 61.805(2)(e) and its failure to comply with KRS 61.815(1) therefore violated the Act; PIB improperly relied upon KRS 61.810(1)(f) in holding a closed session as that exception does not authorize discussion of appointment, discipline or dismissal of a licensee; and, "the presence of 'the person involved, his representatives,' and/or an individual 'not a member of the agency's governing body or staff' rendered KRS 61.810(1)(j) inapplicable" as the record established that a "disinterested third party" was present). 2 He advised that when the PIB passed a motion to enter into closed session, he objected on the basis of that authority. Mr. Cowan asserted that any discussion between the members of the PIB "should be subject to public scrutiny."
At the onset of the hearing of the complaint against EMTP, he asserted, "completely new charges were presented. They were based on new and distinct factual allegations. EMTP was made aware of these new allegations for the first time at the PIB." Mr. Cowan noted that his request for a continuance was denied. Previous KBEMS counsel Pamela Duncan objected, arguing "that certain other cases were so intertwined that they should be heard at the same PIB." Ms. Duncan recused herself. It appeared, in his view, "that the PIB lacked sufficient information to make an informed decision on this matter." To remedy the alleged violation, he proposed that the PIB vacate its decision to refer the matter to a KRS Chapter 13B hearing or, in the alternative, that its decision be set aside, "that precise charges be presented to EMTP (as requested in the January 17, 2013, letter from the undersigned to Mrs. Pam Duncan) and that it be given an opportunity to sufficiently prepare for a new PIB to be heard de novo ." He also requested "copies of all documents, electronic, paper, etc. drafted or utilized by the PIB at the hearing of this matter and all cases claimed related to this case by Mrs. Duncan." Finally, Mr. Cowan asked that "all persons present during the executive session submit a written account of what was discussed during this and the 'related' cases."
In a timely written response, 3 Mr. Cantrill responded on behalf of his client, the PIB, as follows:
. . . The PIB is its own public agency as defined by KRS 61.805(2)(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. " As defined in KRS 61.805(4), member means "a member of the governing body of the public agency and does not include employees or licensees of the agency." Therefore, all members named to the panel are members of the public agency that is the Preliminary Inquiry Board as defined in KRS 61.805(2)(e), and the exemption does allow for closed session meetings under KRS 61.810(1)(j).
Your argument seems to hinge around the notion that the PIB is a subcommittee of some type of the Kentucky Board of EMS (Board). Granted, the PIB is related to the Board, as KRS 311A.055 requires that one member of the PIB be a member of the Board, and also requires that the other two PIB members NOT be members of the Board. (Please note that this membership differs from that discussed in the open meetings decision you cite. The statute was amended July 2006 to the current configuration of PIB members.) However, the PIB is not a subcommittee of the Board. The PIB is created by a different statute, and no power over it is given to the Board. The PIB does not report to the Board, is not created by the Board, nor is it governed by any specific regulations of the Board.
The PIB is a separate public agency created by statute and therefore is not "governed" by the Board. The only people who went into closed session were the PIB members appointed in accordance with the statute, which makes them "members" of the public agency/ governing body that is the PIB, and myself as their attorney to advise them on procedural matters.
Mr. Cantrill noted that "evidence was heard in public session, the PIB's decision was voted on in public session, and the PIB's only power, as stated in KRS 311A.055(11), is to refer the complaint for a Chapter 13B hearing, or dismiss." The PIB found sufficient evidence to refer the matter. Because Mr. Cowan's client will be afforded due process during the 13B hearing, Mr. Cantrell maintained there "is no valid reason to vacate the PIB's decision and dismiss the case against EMTP."
Inasmuch as the PIB is a "public agency" within the meaning of KRS 61.805(2)(e), which is comprised of a single member of the KBEMS and two persons who are not members of the KBEMS under the current version of KRS 311A.055(10), 4 and only PIB members were present during the February 20 closed session, with the exception of its legal counsel, 5 this office finds that KRS 61.810(1)(j) was properly invoked. To the extent 06-OMD-262 can be reasonably interpreted as holding that "certain members of the PIB were not 'members' of the governing agency, therefore KBEMS was not permitted to invoke the exception," as Mr. Cowan credibly argued, this appeal presents the occasion for this office to clarify that because the PIB is a public agency in and of itself, and has no separate governing body, a fact not in evidence or argued in the prior appeal given that KRS 61.810(1)(j) was a belated, secondary argument, KRS 61.810(1)(j) authorizes the PIB to hold a closed session at which only members of the PIB are in attendance, specifically a member of KBEMS and two non-members, for the purpose of conducting deliberations regarding individual adjudications or appointments presuming that. 6 Unlike in 06-OMD-262, the record on appeal in this matter does not reflect that a "'disinterested third party' " was in attendance, a critical fact upon which 06-OMD-262 was largely premised. See 07-OMD-094 (noting that 06-OMD-262 was factually dissimilar but finding the reasoning was controlling as the "record on appeal in that case confirmed the presence of one or more non-members in the closed session" and this office thus found that KRS 61.810(1)(j) could not properly be applied).
In that decision, the Attorney General first determined that the PIB is properly characterized as a "public agency" for purposes of the Open Meetings Act, reasoning as follows:
As a threshold matter, this office must address the Board's contention that a quorum of the KBEMS must be present for the Open Meetings Act to apply, i.e., the Preliminary Inquiry Board is not a public agency for purposes of the Open Meetings Act. In relevant part, KRS 61.805(2) defines "public agency" as follows:
A review of KRS 311A.055 reveals that upon receipt of a properly filed complaint, "the executive director shall assign the complaint to a staff investigator who shall investigate the complaint and shall make findings of fact and recommendations to the executive director who shall then convene a preliminary inquiry board ." KRS 311A.055(10)(Emphasis added). More specifically, KRS 311A.055(10) provides that the Board "shall consist of the executive director, a person representing the same category of certification or licensure as the defendant who is not a member of the board appointed by the chairman of the board, and the board attorney." When viewed in conjunction, KRS 61.805(2)(e) and the mandatory language of KRS 311A.055 remove any doubt as to whether the Board is properly characterized as a public agency in this context. Although the Board arguably qualifies as a public agency within the meaning of one or more of the other definitional subsections codified at KRS 61.805(2), 7 our determination relative to KRS 61.805(2)(e) renders consideration of those issues unnecessary.
06-OMD-262, p. 10. The 2006 amendment to KRS 311A.055(10) does not alter this conclusion.
Having determined that the PIB itself was a public agency, this office then rejected its reliance on KRS 61.810(1)(f), which authorizes closed session discussions "which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student...." as facially inapplicable given that "licensees are excluded from the definition of member by the express language of KRS 61.805(4)." 06-OMD-262, p. 16. More significantly, this office then addressed the applicability of KRS 61.810(1)(j) on the facts presented. This office first noted that the PIB "is analogous to Inquiry Panel B [of the Medical Licensure Board whose actions were challenged in 05-OMD-017] insofar as both are 'quasi-judicial bodies' engaged in deliberations 'regarding individual adjudications' as required for application of KRS 61.810(1)(j)." Id., p. 17.
Noticeably absent from 05-OMD-017, this office continued, "is any discussion of the qualifying language upon which the outcome of this appeal hinges -- 'at which neither the person involved, his representatives, nor any other individual not a member of the agency's governing body or staff is present' -- presumably because the plain language of the respective statutes, namely, KRS 311.591(1) and KRS 311A.055(10), is readily distinguishable." 06-OMD-262, p. 17. The former statute dictated that members of the KBML, including a consumer member, comprise the required two panels of seven, whereas the latter statute mandated that a person who was not a member of the KBEMS be included among the three members of the Board (PIB); the record on appeal also reflected "that a 'disinterested third party that was neither a KBEMS member nor member of any subcommittee of the Board' was in attendance. " Id. In addition, the record on appeal confirmed that four people went into the closed session at issue -- the Executive Director, the General Counsel, and two named individuals from separate local EMS agencies. Id., p. 18. The Attorney General thus concluded that KRS 61.810(1)(j) did not apply on the facts presented, implicitly treating KBEMS as the "governing body" in construing the qualifying language. Mr. Cowan reasonably based his argument on this part of the analysis found in 06-OMD-262.
In light of the additional facts presented here further explaining the independent nature of PIB, the instant appeal presents an opportunity for this office to clarify, and in this limited respect, 8 modify 06-OMD-262. While non-members of the KBEMS were present during the closed session of the PIB, those individuals were members of the PIB, and that is the relevant inquiry as PIB persuasively argued on appeal. Further (see note 4), KRS 311A.055(10) currently mandates that PIB consist of one member of the board (KBEMS) and two persons representing the same category of certification or licensure as the defendant who are not members of the board (KBEMS). The fact that non-members of the KBEMS now comprise a majority of the PIB, 9 if anything, suggests a legislative intent to increase the autonomy and independence of the PIB, which further supports the position of the PIB and our conclusion here. Although KRS 61.810(1)(j) unquestionably prohibits the PIB from holding a closed session if the person involved, his representatives, or "any other individual not a member of the agency's governing body or staff" is present, that did not occur during the closed session held on February 20, 2013, and the agency therefore did not violate the Open Meetings 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:
J. Robert CowanCam Cantrill
Footnotes
Footnotes
1 KBEMS is "attached" to KCTCS per KRS 311A.015(1).
2 Pursuant to KRS 61.846(4)(a), 06-OMD-262 was appealed to the Franklin Circuit Court on January 12, 2007. Kentucky Board of Emergency Medical Services v. Mercy Ambulance Service , 07-CI-00075 (Franklin Circuit Court, Division II). Any decision by the Circuit Court was binding on those parties only and our decision "represents controlling precedent] in this forum until such time as that [decision] is repudiated by the Kentucky Court of Appeals or the Kentucky Supreme Court in a published opinion." 06-ORD-230, p. 7; see 07-ORD-132, p. 7 ("Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the [referenced] line of decisions . . ."); 11-OMD-148.
3 Mr. Cowan asserted in his April 3, 2013, letter of appeal that the PIB violated KRS 61.846(1) in failing to issue a written response to his complaint within three business days of receipt; however, on appeal Mr. Cantrill advised that Mr. Cowan's complaint was not faxed until 9:03 p.m. on February 21, 2013, well after the close of business, and the copy of the complaint attached to his response verifies that fact. Given that February 23 and 24 fell on a weekend, the agency's February 25 response was timely within the meaning of KRS 61.846(1). This office declines to speculate as to why Mr. Cowan apparently did not receive that response; such factual disputes cannot be resolved in this forum.
4 KRS 311A.055(10) currently provides:
The preliminary inquiry board shall consist of one (1) member of the board selected by the chair, and two (2) persons representing the same category of certification or licensure as the defendant who are not members of the board appointed by the chairman of the board.
5 This office has condemned the practice of "selective admission" to closed sessions of a public agency from early on, OAG 77-560, and recently in 12-OMD-185 and 13-OMD-006, for example; however, "on rare occasion a nonmember may be invited into a closed session for limited purposes." 07-OMD-094, n. 4. A third party "who is brought into a closed session for a purpose should remain in the session only as long as the purpose is being served" after the agency "explain[s] why such persons are invited into the session." OAG 77-560, p. 2. Such restrictions do not in general apply to agency employees or counsel for the agency. See 13-OMD-006, p. 8, n. 8. Accordingly, even if Mr. Cantrill was not deemed staff of PIB, "whose function is to serve and assist," 07-OMD-094, pp. 7-8, his presence for the limited purpose of advising members of the PIB, the only individuals present in this case, on procedural matters arguably would not render KRS 61.810(1)(j) inapplicable given that his presence could not operate to the detriment of the defendant. Compare 07-OMD-094 (finding this line of decisions inapposite given the qualifying language of KRS 61.810(1)(j) in holding that presence of the hearing officer, whose role, unlike that of agency counsel, was that "of an independent, neutral, third party," invalidated the closed session as the individuals whose rights and interests were at issue should not be prejudiced by the presence of anyone other than members of the agency's governing body and staff). In any event, Mr. Cowan's primary argument is that any discussion between members of the PIB should be subject to public scrutiny; thus, resolution of this question is not determinative and further discussion is unwarranted.
6 In Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Kentucky Supreme Court expressly recognized the prerogative of the Attorney General to depart from precedent, declaring that the "Attorney General was permitted to reexamine -- and even reject -- its former interpretation of the law." See 09-ORD-033.
7 For instance, KRS 61.805(2)(g) refers to entities which possess the following characteristics:
. its members act as a unit;
. authority has been officially delegated to it;
. its responsibility is to consider, investigate, take action on, or report to a higher authority; and
. specific matters are entrusted to it.
97-OMD-139, citing OAG 94-25. See 06-OMD-211, pp. 4-5.
8 The reasoning found in 06-OMD-262 otherwise stands; the PIB was and is a "public agency" per KRS 61.805(2)(e) and its failure to comply with KRS 61.815(1) on that occasion therefore violated the Act, its reliance on KRS 61.810(1)(f) (not argued here) was improper; and its reliance on KRS 61.810(1)(j) was misplaced there given that a "disinterested third party" was present notwithstanding today's limited modification regarding interpretation of the phrase "governing body" and consequent decision that KRS 61.810(1)(j) was properly invoked here.
9 In relevant part, KRS 311A.055(11) provides that "[a] majority vote of the members of the preliminary inquiry board shall be necessary for action to either remand the matter for hearing or dismiss the complaint without hearing."