TO BE PUBLISHED
95-OMD-71
May 9, 1995
In re: John D. Sammons/University of Kentucky,
Prestonsburg Community College
OPEN MEETINGS DECISION
This appeal originated in a complaint submitted by Mr. John D. Sammons to the University of Kentucky, Prestonsburg Community College, on February 27, 1995. Having been denied access to the minutes of meetings of the President's Cabinet and the President's Leadership Team on the grounds that no minutes are kept of these meetings, Mr. Sammons complained that the failure to record such minutes constitutes a violation of the Open Meetings Act. It was his position that the two entities are public agencies for purposes of the Open Meetings Act, and that, pursuant to KRS 61.835, they are required to keep minutes of their meetings. As a remedy for this alleged violation, Mr. Sammons proposed that President Deborah Floyd be instructed "to begin immediately to implement a policy of minute-keeping and have same available for public inspection."
In a response dated March 7, 1995, Mr. George J. DeBin, Assistant to the President for Fiscal Affairs, denied that the failure to record minutes of these meetings constituted a violation of the Open Meetings Act, and rejected the remedial action proposed by Mr. Sammons. Mr. DeBin argued:
KRS 61.835 requires the taking of minutes "at every meeting of any . . . public agency." KRS 61.805(2) defines public agency to require that there be a meeting of "members" of the agency, and KRS 61.805(4) specifically declares that the definition of "members" of an agency does not include "employees . . . of the agency."
(Emphasis in original.) He explained that the meetings at issue in Mr. Sammons's request are meetings "between and among" University employees and the President of the college, and not meetings of members of a public agency. Alternatively, Mr. DeBin argued that if the President's Cabinet and the President's Leadership Team were considered public agencies for purposes of the Open Meetings Act, their meetings would fall squarely within the exception for "[s]tate and local cabinet meetings and executive cabinet meetings" which is found at KRS 61.810(i)(h).
The question presented in this appeal is whether the University of Kentucky, Prestonsburg Community College, violated the Open Meetings Act in responding to Mr. Sammons's complaint. For the reasons set forth below, we conclude that the University properly denied that the failure to record minutes of meetings of the President's Cabinet and the President's Leadership Team constituted a violation of the Act.
In a recent opinion, this office identified the competing interests which are implicated by the question Mr.ÊSammons raises. Citing a series of opinions from this and other jurisdictions, "we proceed[ed] on the premise that our open meetings law is intended to provide public access to meetings of decision-making bodies, and is not intended to provide public access to the day-to-day administrative work of a public agency." OAG 94-25, p. 3. Recognizing that "'the right of the public to be informed transcends any loss of efficiency,'" we nevertheless concluded that "[l]ogic 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." OAG 94-25, pp. 2, 3, citing Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884, 886 (1987).
Echoing this view, the Florida Court of Appeals has ruled that the state's open meetings law does not apply to meetings between an executive officer and his staff. Bennett v. Warden, Fla. App., 333 So.2d 97 (1976). The court reasoned:
Any other conclusion, carried to its logical extension, would in our view unduly hamper the efficient operation of modern government the administration of which is more and more being placed in the hands of professional administrators. It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting within the disciplines of the Sunshine Law. Neither the letter nor the spirit of the law require it.
Bennett, supra, at 99, 100.
The facts giving rise to that case are, in fact, strikingly similar to the facts presented in this appeal. In Bennett, the president of a junior college appointed several employees of the college to a Career Employees Council, with which he met periodically for the purpose of discussing various problems relating to employee working conditions. The Council's role can thus be likened to that of the President's Leadership Team and the President's Cabinet at Prestonsburg Community College. Each was created to assist the executive officer of its respective institution in the execution of his or her duties. The members of each are appointed by and serve at the pleasure of the executive officer. And each is so far removed from the decision-making process that it is not "capable of making or formulating policy or crystalizing decisions . . . ." Bennett, supra, at 100. See also, Tribune Publishing Company v. Curators of University of Missouri, Mo. App., 661 S.W.2d 575, 584 ("Neither the letter nor the spirit of the 'Sunshine Law' presaged an era wherein purely administrative meetings and administrative functions of public bodies without power or authority to govern were to be subject to public participation").
Guided by these principles, we examine the two groups at issue in this appeal. 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."
Similarly, the Prestonsburg Community College Leadership Team 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 division chairs, the coordinator for Continuing Education Community Services, the coordinator for faculty/staff development, the public relations director, the admissions registrar, deans, and a representative of the library/support division. Like the President's Cabinet, it is not grounded in statute, executive order, regulation or resolution of any kind. And, like the Cabinet, it is an informal working group which serves many of the same purposes, and functions in much the same way.
It is the University's position that neither of these groups are "public agencies" within the meaning of KRS 61.805(2). That is to say, neither group, as constituted, falls within the definition found at KRS 61.805(2)(a) through (h). The University advances several other arguments in support of its position. This argument is, in our view, the most persuasive.
KRS 61.805(2) provides:
(2) "Public agency" means:
(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 district 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), (b), (c), and (h) are clearly inapplicable to the Cabinet and the Leadership Team. Subsection (e) is also inapplicable inasmuch as the groups did not originate in any "statute, executive order, ordinance, resolution, or other legislative act."
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). As the University correctly asserts, the Board of Trustees is the policy-making board of the University under KRS 164.160, 164.210, 164.575, and 164.595. Although its meetings are conducted under the Open Meetings Law, neither of the groups at the Prestonsburg Community College is a policy- making board and neither is required to conduct its meetings under the Open Meetings Law.
Finally, KRS 61.805(2)(g) is inapplicable. The President's Cabinet and the President's Leadership Team exist at the pleasure of President Floyd. As we have noted, the Board of Trustees at the University of Kentucky is a "public agency" within the meaning of KRS 61.805(2)(d). If the groups at issue in this appeal were "established, created, and controlled" by the Board, we would reach a different result. Since they were, instead, established by the President, we conclude that they are not public agencies which are subject to the requirements of the Open Meetings Act.
It is the opinion of this office that the function these groups serve and the manner in which they are created is determinitive, not the title by which they are known. Meetings of the President's Cabinet and Leadership Team could just as easily be characterized as staff meetings, or administrative personnel meetings. Consistent with the principles articulated above, we find that the University properly denied that the failure of these groups to record minutes of their meetings, or otherwise comply with the provisions of KRS 61.805 through KRS 61.850, constitutes a violation of the Open Meetings Act.
Mr. Sammons may challenge this decision by initiating action in 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 may not be named as a party in that action or in any subsequent proceeding under the Open Meetings Act.
CHRIS GORMAN
ATTORNEY GENERAL
Amye B. Majors
Assistant Attorney General
Thomas R. Emerson
Assistant Attorney General
ABM/rrb/389
Distributed to:
Mr. George J. DeBin
Official Records Custodian
University of Kentucky
11 Administration Building
Lexington, Kentucky 40506-0032
Mr. John D. Sammons
Division of Physical Sciences
Prestonsburg Community College
One Bert T. Combs Drive
Prestonsburg, Kentucky 41653