Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Meetings Decision
The question presented in this appeal is whether Western Kentucky University ("WKU") violated the Open Meetings Act in closing a meeting of its Budget Council to the public. We find that WKU did not violate the Open Meetings Act in closing a meeting of its Budget Council to the public, as the Budget Council is not a public agency.
The Bowling Green Daily News submitted an open meetings complaint to WKU on October 30, 2017, stating that one of its reporters had been excluded from the WKU Budget Council meeting. 1 The Daily News argued that the public had been allowed to attend the first meeting of the Budget Council, the Budget Council was subject to the Open Meetings Act, and that the exclusion of the reporter violated the Open Meetings Act. Specifically, the Daily News argued that "the Attorney General has repeatedly held that University Committees whose members are appointed by employees of state Universities, like President Caboni, qualify as 'public agencies' under KRS 61.015(2)(f)."
WKU responded to the complaint on November 2, 2017, arguing that:
The Budget Council was formed by President Caboni to provide advice to him concerning WKU resources. The Council is not required to exist or established by any policy adopted by WKU. The Council was not established nor is it required to exist under any statute, executive order, ordinance, resolution, or other legislative act, and it was not established, created, and controlled by a public agency within the meaning of KRS 61.805(2)(g). The WKU Board of Regents has not taken any action to create, authorize or recognize the Council and has not requested the Council to take any action. The Board has not delegated any decision making authority to it.
The Council's membership is not "defined" or set by any WKU policy or any statute, executive order, ordinance, resolution, or other legislative act. Membership is by invitation from President Caboni and is voluntary. No member of the WKU Board of Regents is a member of the Council.
The Council has no decision making authority (final or otherwise), no ability to authorize public policy changes, and its members are performing an administrative function that is remote from the decision making process . . . . The Council is a "mechanism by which those who report to the President can meet for discussion and coordination of their respective duties and responsibilities . . . [thus facilitating] the work of the President as chief administrator and operating officer of the college."
Id. (citations omitted).
The Daily News initiated this appeal on November 15, 2017, incorporating its complaint, and arguing that "the closing of these meetings is a violation of KRS 61.810(1)(f) and other applicable rulings." WKU responded on December 5, 2017, incorporating its response to the complaint.
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).
In OAG 94-25, an advisory opinion, 2 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. The analysis in OAG 94-25 has subsequently been applied to various university entities, with varying results. See generally 16-ORD-101. "OAG 94-25 presumes a case-by-case application of general principles to individual committees." Id.
In support of its position, the Daily News cites to 13-OMD-090 (University of Louisville Graduate Student Academic Grievance Committee held to be a public agency) , 13-OMD-037 (University of Louisville Arts and Sciences Student Grievance Committee held to be a public agency) , and 06-ORD-145 (Northern Kentucky University -- Chase College of Law Admissions Committee held to be a public agency) . WKU attempts to distinguish these decisions on the grounds that the University of Louisville entities in 13-OMD-090 and 13-OMD-037 were required to be created by the Redbook , the basic governing document for the University of Louisville. WKU also attempts to distinguish 06-ORD-145 on the grounds that it found that "a majority of Admissions Committee members are appointed by the College of Law, and it is a committee established, created, and controlled by the College of Law. " In turn, WKU cites to 13-OMD-176 (University of Louisville Department of Urban and Public Affairs Faculty held not to be a public agency) , 96-OMD-174 (gathering of public officials from various governmental entities meeting voluntarily held not to be a public agency) , and 95-OMD-71 (Prestonsburg Community College President's Cabinet and Leadership Team held not to be public agencies). 3
We find that the most analogous decision is 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. 4
Like the President's Cabinet in 95-OMD-71, the WKU Budget Council is not required to be created by law, or by any of WKU's governing documents. Its members are chosen solely at the discretion of the WKU President, not by the WKU Board of Trustees or any other 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. No specific matters have been delegated or entrusted to it other than providing general budget advice to the President. 5 The WKU Budget Council is therefore not a public agency. Accordingly, WKU did not violate the Open Meetings Act in closing meetings of the Budget Council to the public.
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 The actual date of the Budget Council meeting is unclear from the record.
2 OAG 94-25 expressly stated that "this opinion is not an open meetings decision and consequently does not carry the force of law."
3 See also 13-OMD-187 (University of Louisville Ph.D Comp Exam Committees held not to be public agencies); 13-OMD-177 (University of Louisville's Department of Urban and Public Affairs Ph.D. Program Faculty held not to be public agency).
4 95-OMD-71 further noted that "because there is no 'governing body' for either of the disputed groups, KRS 61.805(2)(f) is inapposite. So too is KRS 61.805(2)(d)."
5 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. ").