May 15 , 1997

In re: College Heights Herald/Western Kentucky University Board of Regents

Open Meetings Decision

This matter comes to the Attorney General as an appeal by legal counsel for the College Heights Herald, a student operated newspaper at Western Kentucky University, in connection with its complaints against the Western Kentucky University Board of Regents. Although there are references to closed portions of meetings held on February 9 and February 24, 1997, this office will only consider the matters relative to the meeting of February 24, 1997. The appeal pertaining to the meeting of February 9, 1997 was not filed with this office within 60 days from the receipt of the public agency's denial by the complaining party and, thus, that appeal is not timely. See KRS 61.846(2).

It was announced in part by the University in a letter dated February 19, 1997 that on February 24, 1997, "the Board of Regents will meet in special session regarding the appointment of a Presidential Search Committee."

In a letter to Peggy Loafman of the Board of Regents, dated February 26, 1997, three persons affiliated with the student newspaper stated that the closed session of the meeting of the Board of Regents on February 24, 1997 was unlawful. We will only refer to those portions of the letter of complaint dealing with matters pertaining to the subsequent appeal by legal counsel.

The newspaper maintained that the Board could not rely upon KRS 61.810(1)(f) to go into closed session because the Board was discussing the creation of a committee to select the next president of the University as opposed to discussing employee matters. The newspaper also said that the public has a right to know who is being considered for selection to such an important committee and why persons will or will not be appointed to that committee.

Ms. Loafman, on behalf of the Board, in a letter to John Stamper of the newspaper, dated March 3, 1997, stated that the closed session was conducted pursuant to the provisions of the Open Meetings Act. She said that "general personnel matters" were not discussed in the closed session and there were no "general discussions about the composition of the search committee" in closed session. "The discussion which occurred in the closed session on February 24, 1997, related to the appointment of individuals to the Presidential Search Committee, and, as such, falls within the exception defined by KRS 61.810(f)."

The letter of appeal submitted by legal counsel for the student newspaper dealt with two meetings but this decision will only deal with the meeting of February 24, 1997. In connection with that meeting legal counsel was concerned with the utilization by the Board of KRS 61.810(1)(f) to go into a closed session regarding the appointment of the Presidential Search Committee.

Counsel for the University submitted a letter dated May 12, 1997. Two matters were of particular concern. The first dealt with the University's objection to any consideration of matters pertaining to the meeting of February 9, 1997 on the grounds that the appeal relative to that issue was not timely filed. The second concerned the interpretation and application of KRS 61.810(1)(f) concerning the appointment of the Presidential Search Committee.

KRS 61.810(1)(f), after its amendment in 1992 which deleted the reference to protecting the reputation of individual persons (1992 Acts, Chapter 162, 3), now reads as follows in regard to what is an authorized exception to an open and public meeting:

Discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student without restricting that employee's, member's, or student's right to a public hearing if requested. This exception shall not be interpreted to permit discussion of general personnel matters in secret[.]

KRS 61.800, a 1992 enactment of the General Assembly, provides 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 and the exceptions provided for by KRS 61.810 or otherwise provided for by law shall be strictly construed."

All parties apparently concede that a presidential search committee created by a board of regents or a board of trustees is a public agency for purposes of the Open Meetings Act. Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 SW2d 884 (1987). The selection of the members of such a committee by the University's regents or trustees and the applicability of KRS 61.810(1)(f) to that process is the issue here.

Keeping in mind the legislative mandate that all exceptions are to be narrowly construed and noting that KRS 61.810(1)(f) concerns discussions or hearings which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student, it is our decision that the Board of Regents has misconstrued the statutory exception and expanded its application to a situation not intended to be exempted.

While the Board was considering an appointment or several appointments, the persons appointed were not employees of the University or of the Board. The appointees were persons filling positions on a entity created by the Board and their temporary existence would end when their task was completed. The Board was not appointing, at that time, a University employee such as a University President.

The Board was not appointing a member as the term "member" is defined in KRS 61.805(4) to mean "a member of the governing body of the public agency."

The Board was certainly not disciplining or dismissing a student and if students were involved at all it would have been as appointees to a temporary committee created by the Board and not as appointees to the University or to the Board.

In 93-OMD-49, copy enclosed, at page three, we said in part that a public agency cannot go into a closed session to discuss personnel matters generally. The only personnel matters which can be discussed in a closed session by a public agency are those which might lead to the appointment, discipline, or dismissal of personnel of that particular agency. This office decided in 95-OMD-93, copy enclosed, that an otherwise public meeting could be closed to discuss the termination of an employee but matters such as the development or selection of a search procedure could not properly be discussed during a closed session of a meeting of a public agency. In addition, in OAG 83-489, copy enclosed, at page two, this office said that a university's board of regents could not discuss the selection process for a new president in a closed session.

It is the decision of this office that the University's Board of Regents incorrectly relied upon KRS 61.810(1)(f) to close an otherwise public meeting to discuss the appointment of persons to a presidential search committee created by the Board as this did not involve the appointment of employees, members, or students.

A party aggrieved by this decision may challenge it by filing an appeal with the appropriate circuit court within thirty days from the date of this decision. See KRS 61.846(4)(a) and KRS 61.848. Pursuant to KRS 61.846(5), the Attorney General must be notified of any action filed in the circuit court, but he shall not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.

A. B. Chandler III

Attorney General

Thomas R. Emerson

Assistant Attorney General


Copies of this decision

have been distributed to:

Amanda Anderson Young

Harned, Bachert & Denton

Attorney for the College Heights Herald

324 East 10th Avenue

P.O. Box 1270

Bowling Green KY 42102-1270

Peggy W. Loafman

Chair, Board of Regents

Western Kentucky University

1 Big Red Way

Bowling Green KY 42101-3576

Deborah Tomes Wilkins

University Counsel

Western Kentucky University

Office of the President

1 Big Red Way

Bowling Green KY 42101-3576