The Open Meetings Act applies to meetings of members of public agencies. Because of the complex nature of the University and the multiple exceptions to the Act, the applicability of the Open Meetings Law to each meeting of University groups cannot be set out with certainty. Whether the Act applies to a meeting of University personnel depends on whether they legally are members of a public agency at the time they are meeting, as well as whether they are transacting public business at the time.
Because of the uncertainty generated by the application of the law to University bodies, the University of Kentucky, in conjunction with the University of Louisville requested an Attorney General Opinion regarding the application of the Open Meetings Law to various university groups. The guidance received from the Attorney General is summarized below.
The Attorney General premised his Opinion on the purpose of the Open Meetings Law: "to provide public access to meetings of decision-making bodies." He stated that the Act "is not intended to provide public access to the day-to-day administrative work of a public agency."
The Open Meetings Law, codified in KRS 61.805 – 61.850, applies only to meetings of "public agencies." The Board of Trustees of the University is clearly such a public agency. The statute also provides that any "committee, subcommittee, ad hoc committee, advisory committee, [or] council" of a public agency is also itself a public agency subject to the Act. The Attorney General pointed out, however, that there is no guidance in the statute concerning the extent to which the Open Meetings Law "reaches down through layers of administrative organization to affect the day-to-day administrative work of employees." He further pointed out that "logic and common sense demand that a certain level of subdelegation be reached at which work is being done that is too remote from the decision-making process to invoke the public interest secured by the open meetings law."
The Attorney General devised the following practical definition to determine whether a University body meets the definition of public agency: "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." The Attorney General used this definition to determine that the meetings of the University Senate and meetings of colleges and department faculty held to act collectively on items delegated to faculty by the Governing Regulations are subject to the Open Meetings Law.
The Opinion, however, concluded that "it does not follow that every congregation of employees who are members of those bodies must be an open meeting. The law applies only to meetings at which public business is discussed or action is taken. If a meeting is contemplated or scheduled at which neither action will be taken nor public business discussed, the meeting need not be open to the public."
The Attorney General defined "public business" as:
- The expenditure of public funds;
- The scope of services offered by the University;
- Regulations, policies or procedures that affect the manner in which the University provides services to the public or complies with its statutory duties;
- Personnel matters affecting the compensation, benefits or duties of public employees. The Attorney General stated that the following are probably not public business:
- Matters related to a specific situation involving a particular student, employee, faculty member or member of the public;
- Casual conversations among faculty or senate members;
- Matters that are purely internal to the faculty or senate itself, except matters involving the time or place of meetings.
The Open Meetings Act specifically exempts from the definition of public agency and thus from the provisions of the Act "a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees." Accordingly, the meetings of hospital peer review committees, departmental and college promotion and tenure committees, or Academic Area Advisory Committees are not subject to the Open Meetings Act.
A determination that a University body is subject to the Open Meetings Act does not automatically mean that the full meeting must be open to the public. The Act, for example, allows portions of an otherwise public meeting to be closed to the public in the following circumstances:
- For discussions of proposed or pending litigation;
- For discussions or hearings that might lead to the appointment, discipline, or dismissal of an individual employee or student; • For "cabinet meetings" (i.e., meetings of administrators, such as vice presidents and deans, deans and department chairs, etc.);
- Meetings that federal or state law specifically require to be conducted in privacy.
"Closing" a Meeting In order to "close" an otherwise open session, notice must be given in the open portion of the meeting of the general nature of the business to be discussed, the reason for the closed session, and the specific provision of the law authorizing the closed session (see Exhibit A, KRS 61.810), a motion must be made and carried by majority vote to go into closed session; no final action may be taken in closed session. (Note: this procedure is not required for meetings of administrators or student-related hearings.) Compliance with the Open Meetings Law If a University body is subject to the law, it must provide a schedule of regular meetings, and make that schedule available to the public (for instance by posting on the college or departmental bulletin board). In order to hold a special meeting (see Exhibit B) must be followed. Minutes of "action taken" must be kept for all meetings of bodies subject to the Open Meetings Act.
Questions concerning application of the Open Meetings Law should be directed through administrative channels to the Executive Vice Presidents' offices. Executive Vice Presidents should consult with the University's Office of Legal Counsel when necessary.