Water board is a private entity, so it can bar members from meetings, attorney general says

A Rockcastle County water system can bar members from its meetings because it isn't a public agency, Attorney General Jack Conway said in an open meetings decision last week.

"Because Eastern Rockcastle Water Association, Inc. is a private, nonstock, nonprofit corporation organized under KRS Chapter 273, ERWA cannot properly be characterized as a 'public agency' within the meaning of KRS 61.805(2)," Conway said. "Accordingly, ERWA is not required to comply with provisions of the Open Meetings Act." It cited a 1978 attorney general's opinion.

The latest opinion, which has the force of law, was requested by Barbara Castleberry, who said ERWA President David Ballinger prevented her and four other customer-members of the association from attending its monthly board meetings at a county-owned facility. “A notice that limited attendance to Board Members, Board Attorney, General Manager, and Auditor was posted on the meeting room door,” Castleberry wrote. When she and the others tried to attend the meeting, “Mr. Ballinger called the Office of the Rockcastle County Sheriff, who sent two deputies to escort the group from the meeting room.”

Catstleberry argued that ERWA is referred to as "a public governmental agency" in an agreement it made with the Western Rockcastle Water Association. That was a reasonable argument, Conway said, but "none of that language is determinative on the facts presented. ... The Attorney General has long recognized that a private, nonprofit corporation is not a public agency for purposes of the Open Meetings Act."

In a footnote, Conway noted that a private, nonprofit corporation may be a public agency for purposes of the Open Records Act even if not covered by the Open Meetings Act. The Open Records Act applies to entities that get at least 25 percent of the funds they expend in the Commonwealth from state or local authorities. The decision is No. 09-OMD-81.


In an Open Records Decision, 09-ORD-079, Conway said the Cabinet for Health and Family Services did not violate the law by not providing copies of copyrighted material used by the Department for Medicaid Services in making determinations of clinical appropriateness.