Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
Summary : Eastern Kentucky University's Faculty Committee on Dismissal is a "public agency" within the meaning of KRS 61.805(2)(g) and therefore must comply with provisions of the Open Meetings Act. The Committee violated KRS 61.810(1) in excluding members of the public, including faculty members, from its March 30, 2018, meeting.
Open Meetings Decision
The question presented in this appeal is whether Eastern Kentucky University's Faculty Committee on Dismissal ("Committee") violated the Open Meetings Act, specifically KRS 61.810(1), in excluding faculty members from its March 30, 2018, meeting. In her May 8, 2018, written complaint, submitted in accordance with KRS 61.846(1), Paula Kopacz, Professor of English, noted the "Provost, who also attended the meeting, confirmed at the Faculty Senate special meeting on April 16 that the March 30 meeting was closed. Faculty, and the public generally, were excluded from this public meeting without explanation." Ms. Kopacz asserted the Committee is a "public agency" 1 for purposes of the Open Meetings Act under KRS 61.805(2)(g)(mistakenly cited as KRS 61.805( 1 )(g)). The Open Meetings Act permits a public agency to conduct a closed session pursuant to 13 narrowly framed exceptions identified at KRS 61.810(1)(a)--(m)(14 after July 14, 2018, identified at KRS 61.810(1)(a)--(n)), Ms. Kopacz observed, none of which the Committee invoked as the basis for excluding the members of the faculty who attempted to attend the March 30 special meeting in direct contravention of KRS 61.810(1). Ms. Kopacz asserted that even assuming the Committee may have properly invoked a statutory exception, the Committee was "legally obligated to convene in open session, establish the existence of a quorum, approve any unapproved minutes of past meetings, and observe the requirements for going into closed session found at KRS 61.815(1)."
To remedy the alleged violations, Ms. Kopacz proposed the Committee should "acknowledge its status as a public agency for open meetings purposes and agree to conduct all future meetings in a manner consistent with the requirements of" the Act; "provide the public with a copy of any record or recording of all meetings since it was reconvened as a body to discuss faculty dismissals"; and, require members of the Committee "and others attending the March 30 meeting agree to undergo training" on the Open Meetings Act "by a trainer designated by the complainant." Ms. Kopacz emphasized, "The lynchpin of our argument is that, as a committee that is 'established, created, and controlled by a public agency, ' to wit, [EKU] and its Board of Regents, under authority of University Policy 4.6.16P, Procedures, "Establishing the Faculty Committee on Dismissal," 2 the Committee is a public agency as defined in KRS 61.805(2)(g). Of particular significance, Ms. Kopacz argued:
It is undisputed that [the Committee] exists solely by virtue of EKU policy. Policy 4.6.16P, Dismissal of Faculty, Procedures, Establishing the Faculty Committee on Dismissal, establishes and creates [the Committee] by authorizing the committee and fixing its composition . Policy 4.6.16P, Dismissal of Faculty Due to Academic Program Discontinuance ensures university control by determining the committee's charge, its role, and its duties. Because it is a public agency within the meaning of KRS 61.805(2)(g) , the committee must strictly adhere to each and every requirement of the Open Meetings Act in discussing public business . This clearly includes discussion of matters pertaining to dismissal of tenured faculty and discontinuation of existing university programs.
In support of her position, Ms. Kopacz cited
Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884 (Ky. 1987)(holding that Presidential Search Committee created by formal action of the UK Board of Trustees, a public agency created by statute, was itself a public agency) , and
Frankfort Publishing Co., Inc. d/b/a The State Journal v. Ky. State Univ. Foundation, 834 S.W.2d 681, 682 (Ky. 1992), and 17-OMD-207 (following OAG 94-25 in holding that "built-to-suit selection committee" of the Finance and Administration Cabinet was a public agency) .
Provost Deborah Whitehouse, Interim Senior VP for Academics, issued a timely written response to Ms. Kopacz by letter dated May 11, 2018, per KRS 61.846(1). She asserted the Committee "is an internal working group that gives input and makes non-binding recommendations on matters of potential tenured faculty dismissal for cause, financial exigency, or program discontinuance. The [Committee] is made up of faculty members elected by their peers, as well as some non-voting members. The [Committee] meets purely on an as-needed basis, as called by the Provost." Although the Board of Regents approved Policy 4.6.16P on October 19, 2015, Ms. Whitehouse asserted, "the Board in no way further establishes, appoints, creates, and most importantly, controls the [Committee]. Additionally, just because a working group like the FCD is labeled a 'committee,' it does not mean it is the kind of committee covered by KRS 61.805(2)(g), or otherwise subject to the Open Meetings Act. "
Noting the criteria outlined in OAG 94-25, Provost Whitehouse observed the Attorney General and courts "have declined to find that other internal working groups are 'public agencies' subject to" working groups are 'public agencies' subject to" 3 the Open Meetings Act. 4 She cited
Taylor v. Bowling Green Municipal Utilites, 2012 WL 5371994 (Ky. App. 2012) (distinguishing Presidential Search Committee in holding that group comprised of three Utility employees did not qualify as "a committee" under KRS 61.805(2)(g) as the Utility's Board had "not requested the action or approved it," nor had the Board delegated authority to said employees and the "informal group" was therefore "not akin to a committee created by a formal action of a Board"), 5 and 13-OMD-176 (holding that University of Louisville's Department of Urban and Public Affairs is not a public agency because its work is too remote from the decision making process). 6 According to Provost Whitehouse, the Committee "is not a public agency because it has no policy or decision-making authority, and certainly no independent authority to make any decisions or take any action on the matter. To be certain, the [Committee] does not function independently at all." Having outlined the functions of the Committee, set forth in the cited Policy, Provost Whitehouse advised the Committee's recommendations are not only non-binding -- "they are several steps removed from any final decision process that may follow." 7 In the interest of transparency, however, Provost Whitehouse advised that EKU "is willing to declare that all future meetings of the [Committee] will" comply with the Open Meetings Act.
Ms. Kopacz does not dispute that the Committee's role is advisory in nature. Further, Ms. Kopacz and her colleagues "agree that it does not function independently but is 'controlled' by the university authorities to which it reports. It owes its establishment and creation to the referenced policy, whose 'Approval Authority' is the Board of Regents." As an ad hoc and advisory committee that is established, created, and controlled by EKU, Ms. Kopacz concluded, the Committee falls squarely within the parameters of KRS 61.805(2)(g). This office agrees that KRS 61.805(2)(g) controls here.
"Whether this group is considered a 'committee,' [a 'subcommittee, '] an 'ad hoc committee,' or an 'advisory committee' makes no difference, since all of these are covered by the definition in KRS 61.805(2)(g)." 09-OMD-168, p. 7 (Planning Commission, a public agency, "established and created the" Comprehensive Plan Committee, "and controlled it inasmuch as it assigned the Committee the task of drafting the goals and objectives and reporting back" and the Committee itself was therefore a public agency) ; 06-OMD-068, p. 10 (record on appeal confirmed that a committee was formed notwithstanding characterization by the agency of it as "group" on appeal; advisory role of committee did not alter the outcome); 15-OMD-155 (a committee, established by the Kentucky Board of Education to "narrow [] the search for a firm to assist the Board in finding a new commissioner of education," was a public agency pursuant to KRS 61.805(2)(g)); 16-OMD-102.
Under KRS 61.805(2)(g), "public agency" includes "[a]ny board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, . . . established, created, and controlled by a 'public agency' as defined" in subsections (a)-(f), or (h) of this provision. KRS 61.805(2)(g). The EKU Board of Regents ("Board") is a "public agency" under KRS 61.805(2)(d)("the policy-making board of an institution of education, created by or pursuant to state or local statute," KRS 164.321(1). It established and created the Committee by adopting Policy 4.6.16P, Dismissal of Faculty, which defines the composition of the Committee, dictates when the Committee shall convene, specifies how members and the chair shall be elected, etc. Accordingly, the Committee is "controlled" by the Board." 8 To hold otherwise "would clearly thwart the intent of the law." 9
Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d at 886.
Prior decisions of this office support this conclusion. See 93-OMD-49 (a three-member grievance committee appointed by the Mayor was a public agency) ; 99-OMD-77 (Finance and Budget Committee created by Franklin County Fiscal Court as an advisory body was a public agency) ; 06-OMD-068 ("R/V Committee" appointed by Mayor to review section of zoning ordinance and present a proposed text amendment to City Council was a public agency) ; 10-OMD-149 (if screening committee was "established and created by the [Kentucky Department of Education] under the terms of the published policy, and controlled by [the Department] to the extent its duties were defined by the policy," it was a public agency per KRS 61.805(2)(g)); 95-OMD-124; 04-OMD-148; 05-OMD-117; 14-OMD-246. Compare 00-OMD-141 (seven KDE employees, four contractor representatives, and one employee of the Office of Education Accountability did not fall within KRS 61.805(2)(a) through (h) as the informal workgroup was " neither established nor created by the Kentucky Board of Education or the Department, nor [was] it controlled by these agencies ")(emphasis added); 04-OMD-082; 09-OMD-056. When a quorum of the Committee convened to discuss public business, a "meeting" occurred within the meaning of KRS 61.805(1). 06-OMD-211, p. 5; 15-OMD-155. "At a minimum," on any such occasion "there [should have been] a determination that a quorum [was] present and a commencement of proceedings prior to the beginning" of discussions properly held in closed session, if any. 12-OMD-140, p. 7.
Established, created, and controlled by the EKU Board of Regents, the Faculty Committee on Dismissal is a "public agency" within the meaning of KRS 61.805(2)(g). Thus, it was required to comply with provisions of the Act. In relevant part, KRS 61.810(1) provides: "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 . . .[.]" (Emphasis added). When construing this provision, the Attorney General has expressly "attached significance to the use of the disjunctive particle, 'or,' rather than the conjunction 'and.'" 98-OMD-94, p. 5; 99-OMD-77; 03-OMD-187. In 98-OMD-94, this office recognized that since a quorum of the members of the public agency was present and public business was discussed, the agency violated the Act in failing to notify the public of the meeting, thereby excluding the public from the meeting. As in the cited decisions, the Committee "play[ed] a role in the formation of public policy"' so its meeting was "subject to the requirements of the Open Meetings Act "notwithstanding the fact that it [did] not have authority to act." 99-OMD-77, pp. 4-5. See Univ. of Ky. Presidential Search Comm., above ; OAG 89-25; 98-OMD-96.
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 For purposes of the Open Meetings Act, "public agency" is expansively defined at KRS 61.805(2) as:
(a) Every state or local government board, commission, and authority;
(b) Every state or local legislative board, commission, and committee;
(c) Every county and city governing body, council, school board, special district board, and municipal corporation;
(d) 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;
(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;
(f) Any entity when the majority of its governing body is appointed by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a "public agency," a state or local officer, or any combination thereof;
(g) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a "public agency" as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
(h) Any interagency body of two (2) or more public agencies where each "public agency" is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection [. ]
Subsections (a)-(e) and (h) are facially inapplicable; KRS 61.805(2)(f) is inapposite as the Committee does not have a "governing body." The dispositive question is whether the Committee is a "public agency" within the meaning of KRS 61.805(2)(g).
2 Pursuant to Policy 4.6.16P:
The Faculty Committee on Dismissal (FCD) shall be comprised of an elected representative from each of the five academic colleges. When convened for the purpose of dismissal for financial exigency, the FCD shall also include an elected full-time faculty member from the Libraries. When convened for the purpose of dismissal for financial exigency or program discontinuance, the FCD shall also include the Chair of Faculty Senate and the Chair of the Chairs Association as non-voting ex officio members. 2. Non ex officio membership on the FCD shall be limited to full-time tenured faculty members and may not be a Department Chair, Associate Dean, or Dean. 3. Every three years, each College shall hold an election no later than September 15 and shall elect one (1) representative and two (2) alternates from among the eligible faculty. 4. The chair of the FCD shall be elected from within the non ex officio members.
Eastern Kentucky University Policy and Regulation Library, Volume 4 (Academic Affairs), Chapter 6 (Faculty Appointments and Evaluation Section), Section 16.
3 The fact EKU characterizes the "Faculty Committee on Dismissal" as a "working group," does not change its function as outlined in the referenced Policy. See Taylor v. Bowling Green Municipal Utilites, 2012 WL 5371994 (Ky. App. 2012)(recognizing "[i]t is not the name which a group is given that is determinative, but its function").
4 In OAG 94-25, this office found that KRS 61.805(2)(g) refers to "any body that possesses 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." OAG 94-25, p. 2.
5 Taylor is an unpublished opinion rendered after January 1, 2003, that may be cited for consideration if there is no published opinion that sufficiently addresses the issue per CR 76.28(4)(c).
6 OAG 94-25 addressed the extent to which the Open Meetings Act "reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees." The Attorney General found the University of Kentucky Senate, faculties of colleges, and faculties of departments were all public agencies. Id. , p. 2. See also 97-OMD-139 (Housing Appeals Committee at EKU is a public agency pursuant to KRS 61.805(2)(g) and its meetings are open to the public unless one or more exceptions found at KRS 61.810(1) applies); 98-OMD-142 (EKU Financial Aid Professional Judgment Committee of the Office of Financial Assistance is a public agency); 99-OMD-77 (budget committee appointed by Franklin County Fiscal Court is a public agency pursuant to KRS 61.805(2)(g) as the advisory committee was established, created, and controlled by a public agency). Compare 95-OMD-71 (Prestonsburg Community College President's Cabinet was not a "public agency" but if the "groups" at issue were established, created, and controlled by the Board, this office would reach a different result).
However, OAG 94-25 "presumes a case-by-case application of general principles to individual committees." 16-ORD-101, pp. 6-7. The Committee whose actions have been challenged here satisfies all of these criteria. See 13-OMD-012; 13-OMD-037; 13-OMD-040, and 13-OMD-090, all of which found that committees of the University of Louisville were public agencies within the meaning of KRS 61.805(2)(f) and (g), "although they were not policy or decision-making bodies and their members were not appointed by the President, Provost, or Board of Trustees." 16-ORD-101, p. 7 (UK Healthcare Compensation Planning Committee was a "public agency"). Compare 13-OMD-176; 13-OMD-177; 13-OMD-187, the committees in which did not bear the indicia of advisory committees, and therefore were not public agencies. This office noted in OAG 94-25 that KRS 61.805(2) "has undergone substantial revision and the applicability of the court's analysis [in Presidential Search Committee ] to the current statutory language is open to question." Id. , p. 2.
7 In response to Ms. Kopacz's appeal, counsel for EKU maintained that its original response addressed the arguments that Ms. Kopacz raised; counsel enclosed a copy of Provost Whitehouse's response to Ms. Kopacz's complaint and incorporated it by reference. In addition, counsel emphasized the Committee "is not 'controlled' by University authorities." Counsel reiterated the Committee does not have authority to take action. EKU cited 18-OMD-101 in additional support of its position; however, that decision is distinguishable insofar as the Council did not owe its existence to the Board of Regents.
8 The Committee also plays an integral role in the dismissal process. For example, when there is "an allegation of causes sufficient to warrant dismissal of a tenured faculty member," the tenured faculty member may request, within 14 days of notice from the Provost of the intent to dismiss, "to the Provost in writing--with a copy to the Department Chair, the College Dean, and the President--an inquiry by the Faculty Committee on Dismissal." When, as in this case, the dismissal of faculty due to academic program discontinuance is contemplated, the Provost, the Committee, and the Deans "shall meet to evaluate the necessity of eliminating tenured faculty positions. If they conclude, based on available data, that faculty lines will need to be eliminated, they will prepare a report recommending the number of faculty lines to be eliminated, with justifications and supporting data for the recommendation." The relevant procedure also dictates the Provost, the Committee, and the Deans "shall meet to review the Faculty Senate response and shall prepare a final recommendation to the President that shall include the number of faculty lines to be eliminated."
In summary, the Committee unquestionably "acts as a unit" in conducting inquiries and in evaluating the necessity of eliminating tenured faculty positions, etc.; the Board has delegated authority to the Committee for the purpose of conducting inquiries when requested, helping to evaluate the necessity of eliminating tenured faculty positions, prepare reports, and review the Faculty Senate response to assist in preparing a final recommendation to the President; its responsibility is to consider, investigate, and report to the President; and specific matters, namely the dismissal of tenured faculty, in this case because of program discontinuance, have been entrusted to it. See 18-OMD-051 (ad hoc committee of Louisville Metro Government, comprised of employees and members of the public, that was created to evaluate and report on a proposal, satisfied the criteria of OAG 94-25 and was a "public agency" under KRS 61.805(2)(g)).
9 The Council on Academic Affairs, whose status was challenged in 18-OMD-101, did not owe its existence to such a policy nor did the Board of Regents exert control over the Council by virtue of such a policy.