TO BE PUBLISHED

96-OMD-180

August 22, 1996

In re: Chris Dyke/Seven Counties Services, Inc.

OPEN MEETINGS DECISION

This matter comes to the Attorney General as an appeal by Chris Dyke in connection with her complaint against Seven Counties Services, Inc.

Although KRS 61.846(2) requires that a complaining party, desiring the Attorney General to review the public agency's denial of the complaint, submit a copy of that written complaint to the Attorney General, such was not done in this situation. This office, however, has a reasonably good idea of the nature of the complaint based on the response to that complaint by legal counsel for Seven Counties Services, Inc.

In a letter to Ms. Dyke, dated August 6, 1996, J. Larry Cashen, legal counsel for Seven Counties Services, Inc., advised that the Open Meetings Act applies only to public agencies and Seven Counties Services, Inc. is a private nonprofit corporation. He further said that Seven Counties Services, Inc. is not a public agency as that term is defined in KRS 61.805(2) and discussed in OAG 75-402. As a “nonprofit corporation providing mental health and mental retardation services to this community,” Mr. Cashen stated that the organization in question is not subject to the executive session constraints addressed in Ms. Dyke's complaint.

Ms. Dyke's letter of appeal was received by this office on August 9, 1996. On August 12, 1996, this office sent a copy of a “Notification of Receipt of Open Meetings Appeal” to both Ms. Dyke and Mr. Cashen. While no response was received from Ms. Dyke, Mr. Cashen, in a letter received August 15, 1996, again stated that Seven Counties Services, Inc. is a private nonprofit corporation and not a public agency subject to the terms and provisions of the Open Meetings Act.

The basic question to resolve here is whether, on the basis of the evidence and facts presented, Seven Counties Services, Inc. is a public agency pursuant to KRS 61.805(2)(a) through (h).

KRS 61.805(2) defines the term “public agency” and after reviewing the eight subsections of that definition, we conclude that the corporation involved is not a public agency under the Open Meetings Act. The corporation is not a state or local government board, commission, or authority. It is not a state or local legislative board, commission, or committee. It is not a county or city governing body, council, school district board, special district board, or municipal corporation. It is not a state or local government agency created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act. It is not a 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. It is not an entity where the majority of the governing body is appointed by a public agency, a member or employee of a public agency, a state or local officer, or any combination thereof. It is not a board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency established, created, and controlled by a public agency. Finally, it is not an interagency body of two or more public agencies.

Contrast the definition of public agency under the Open Meetings Act with the definition of a public agency under KRS 61.870(1) of the Open Records Act which in subsection (h) provides that public agency means, “Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.”

In OAG 81-266, copy enclosed, this office concluded, citing OAG 75-402, that a nonprofit corporation is not a public agency under the terms and provisions of the Open Meetings Act. A rural electric cooperative corporation, formed pursuant to KRS Chapter 279 as a nonprofit corporation, was said not to be a public agency for purposes of the Open Meetings Act in OAG 79-560, copy enclosed. In OAG 78-395, copy enclosed, this office said that a water association, a nonprofit, nonstock private corporation operating under KRS Chapter 273, is not subject to the Open Meetings Act. The definition of “public agency” under the Open Meetings Act has changed since the opinions mentioned above were rendered but on the basis of the evidence available in this situation we see no reason to depart from those opinions at this time.

It is, therefore, the decision of the Attorney General, that on the basis of the evidence made available at this time, a nonprofit corporation providing mental health services to the community is not a public agency pursuant to KRS 61.805(2) of the Open Meetings Act and thus not subject to the constraints on closed sessions of public meetings set forth in the Open Meetings Act.

A party aggrieved by this decision may appeal 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

943

Copies of this decision

have been distributed to:

J. Larry Cashen

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville, KY 40202

Chris Dyke

Kentucky Association of State Employees

115 East Second Street, #2

Frankfort, KY 40601