Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether the University of Louisville's Department of Urban and Public Affairs Ph.D. Program Faculty violated the Open Meetings Act at a meeting held on October 26, 2011. The appellant, Dr. Christopher M. Grande, represented by J. Fox DeMoisey, essentially argues that the Program Faculty failed to hold an open meeting or to give public notice of its meeting.
As a threshold issue, we must determine whether the Ph.D. Program Faculty as a unit, when exercising delegated authority to consider, investigate, take action on, or report on specific matters entrusted to it, is a public agency as defined in KRS 61.805(2)(g). If so, the Program Faculty's acknowledged failures to comply with the provisions of KRS 61.800 to 61.850 constituted violations of the Open Meetings Act.
On September 24, 2013, Dr. Grande submitted a complaint to University President James R. Ramsey in which he alleged that the Ph.D. Program Faculty had violated the Open Meetings Act by conducting meetings from which the public was excluded. Included in this complaint were allegations that the Program Faculty failed to keep minutes of its meetings, 1 failed to conduct meetings at times and places convenient to the public, 2 and failed to comply with the mandatory notice requirements found in the Act. 3 He specifically alleged that a meeting of the Ph.D. Program Faculty " occurred on or about October 26th, 2011, at which time the topics of the meeting included, but [were] not limited to, critical topics such as revising and setting the curriculum of the 'UPD Ph.D. Program' mid-course; the fundamental means of evaluation, grading and testing methodologies and standards to be applied to students; and, other important issues impacting the public business of education at this public institution[']s graduate program." (Emphasis in original; footnote omitted.) As a remedy, he asked that the President "void any decisions undertaken" by the Program Faculty in violation of the Open Meetings Act.
University Counsel Angela D. Koshewa issued a timely response to Dr. Grande's complaint, stating as follows:
In your September 24 e-mail to Dr. Ramsey you refer to a UPA PhD Program Committee [original emphasis]. On January 31, 2013 I replied to yet another inquiry you had directed to Dr. Ramsey concerning the Department of Urban and Public Affairs in which you mentioned curriculum revision and the administration of the comprehensive exam. My reply is copied below:
Dear Mr. Grande, The President has forwarded to me for reply the attached notes from you which were originally sent to him on Monday January 28 and re-sent today. I reply to them here. You have not identified, nor have I been able to identify, a meeting of the Department of Urban and Public Affairs of the College of Arts and Sciences to which you were denied access. You make reference to actions you believe were taken by the Department, specifically a revision of the curriculum of the UPA PhD program and the UPA PhD comprehensive exam policy. I am advised that those items are developed by the program faculty, i.e. the faculty members who teach in that particular program, not the Department. These items would not appear to be public policy or public business under KRS 61.800, but are operational and related to the internal administration of the program.
(Emphasis added.) On the same date, September 27, 2013, Dr. Grande, through his attorney J. Fox DeMoisey, initiated this appeal.
In support of their position, the appellants attach records obtained through the Open Records Act confirming the occurrence of Program Faculty meetings, including an e-mail from Dr. David L. Imbroscio to Dr. Grande dated October 27, 2011, indicating that "yesterday the program faculty passed a number of changes, under my direction, " and "you [Dr. Grande] will have the option to maintain the old system or go with the new system (regarding exams, especially)." This correlates with University counsel's representation to Dr. Grande on September 27, 2013, that "those items [ i.e., revising the curriculum of the Ph.D. program and the examination policy] are developed by the program faculty. " Therefore, the Program Faculty has an entrusted authority to make decisions regarding these academic matters.
In support of the University's position that it is not subject to the Open Meetings Act, the University cites 04-OMD-082, in which the Attorney General determined that a high school faculty was not a public agency. The University "agrees with the general premise of OAG 94-25," but disagrees with the point at which the opinion "draws [the] line" between policy-making and administrative bodies, urging this office to accept the premise that the "inner operations of a particular academic department do not implicate the public interest. "
In 04-OMD-082, upon which the University relies, this office held that a high school faculty was not a public agency within the meaning of KRS 61.805(2)(g) , or any other definition of the term, because the high school's site-based council operated as the governing body of the high school. The faculty was not established, created, or controlled by the council, and authority had not been delegated to the faculty. The high school faculty's meeting did "focus on the day-to-day administrative work of the high school. ..".
The University does not deny the substance of the appellants' complaints regarding the failure of the Program Faculty to follow the Open Meetings Act, but responds that the complaint and appeal are deficient because they do not "'state the circumstances' of a claimed Open Meetings Act violation." As we have stated above, however, the fact that the appellants, in their September 24 complaint, supplied the date of a purported meeting makes this matter ripe for review.
The Kentucky Supreme Court concluded in
Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (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 university personnel. See advisory OAG 94-25.
In advisory OAG 94-25, at page three, we said 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. It was 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.
KRS 61.810(1) defines "public meeting" as "[a]ll 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." KRS 61.800 states that the basic policy of the Open Meetings Act is that the "formation of public policy is public business and shall not be conducted in secret."
Ultimately, we must determine at what point in the administrative layering of a University, the Open Meetings Act no longer applies. 4 As stated in advisory OAG 94-25, if the work being done by the DUPA faculty is too remote from the decision making process, the Open Meetings Act is not implicated. That is the case here, the analysis in advisory OAG 94-25 notwithstanding.
The University of Louisville Redbook, its policy standard, Section 1.1.1 states that "the Board of Trustees of the University of Louisville shall exercise final jurisdiction over the University." Section 2.1.2 states that the President functions to "make overall policy for all aspects of the academic and other functions of the University" and to "recommend major policies and other major actions to the Board of Trustees for its final action and to be the official medium of communication between the Board of Trustees and the various segments of the University and their official bodies." Section 3.4.2(A) states that "[t]he Faculty Senate may state its disapproval of any action of a faculty that seriously affects the general interest of the University and recommend appropriate action to the President as chief educational officer of the University."
Section 3.32 of the Redbook provides that "each faculty shall have general legislative powers over all matters pertaining to its own personnel policies, criteria, and procedures, to its own meetings, and to the admission requirements, curricula, instruction, examinations, and recommendations to the Board of Trustees for granting of degrees in its own academic unit. All such actions shall be consistent with enumerated policies of the Board of Trustees....The Faculty Senate, after proceeding in the manner stated in Section 3.4.2.A may state its disapproval of any action of the faculty that seriously affects the general interest of the University, and may recommend appropriate action to the President as chief educational officer of the University."
Given DUPA Faculty's limited ability to authorize public policy changes, its focus on administrative duties, and the oversight of other bodies, we must conclude that the Faculty is not performing public business. As such, it is not subject to 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. Fox DeMoisey, Esq.Angela D. Koshewa, Esq.Deborah H. Patterson, Esq.
Footnotes
Footnotes
1 KRS 61.835.
2 KRS 61.820.
3 KRS 61.820 and KRS 61.823.
4 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).