Univ. of Ky. v. Hatemi

• Citation: 636 S.W.3d 857
• Decision Date: 05 November 2021
• Docket Number: NO. 2019-CA-0731-MR AND NO. 2019-CA-0794-MR,2019-CA-0731-MR AND NO. 2019-CA-0794-MR
• Parties: UNIVERSITY OF KENTUCKY, Appellant/Cross-Appellee v. Lachin HATEMI, M.D., Appellee/Cross-Appellant
• Court: Court of Appeals of Kentucky

636 S.W.3d 857

UNIVERSITY OF KENTUCKY, Appellant/Cross-Appellee

v.Lachin HATEMI, M.D., Appellee/Cross-Appellant

NO. 2019-CA-0731-MR AND NO. 2019-CA-0794-MR

Court of Appeals of Kentucky.

NOVEMBER 5, 2021; 10:00 A.M.

BRIEFS FOR APPELLANT/CROSS-APPELLEE: Joshua M. Salsburey, Donald C. Morgan, William E. Thro, Lexington, Kentucky.

BRIEFS FOR APPELLEE/CROSS-APPELLANT: Ivey L. Workman, Andre F. Regard, Lexington, Kentucky.

BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES.

OPINION

ACREE, JUDGE:

The University of Kentucky (UK) seeks appellate review of the Fayette Circuit Court's opinion and order affirming a decision of the Office of the Attorney General (AG) that found UK violated the Open Records Act, Kentucky Revised Statutes (KRS) 61.870 et seq.

By separate appeal, Dr. Lachin Hatemi requests review of that portion of the same opinion and order dismissing his counterclaim that UK willfully withheld records in violation of KRS 61.882(5).

INTRODUCTION

The Assistant Attorney General (AAG) assigned to review UK's response to Dr. Lachin Hatemi's Open Records Act request for the production of nonexistent meeting minutes exceeded her authority in conducting that review. The result was an erroneous AG decision in In re: Lachin Hatemi/University of Kentucky Healthcare Compensation Planning Committee , Ky. Op. Atty. Gen. 16-ORD-101, 2016 WL 3029663 (May 19, 2016). UK, claiming status as the aggrieved party, invoked the Fayette Circuit Court's subject matter jurisdiction, defined by KRS 61.882(1) only to authorize "jurisdiction to enforce the provisions of KRS 61.870 to 61.884 [.]"

The circuit court did not affirm the specific AG finding, nor did it independently find, that UK or any subdivision thereof "violated KRS 61.880(1) ... when it failed to conduct an adequate search for the minutes." (Contrast In re: Lachin Hatemi , 16-ORD-101, at *5 (Record (R.) 52) with opinion and order, p. 2 (R. 420-22)). Rather, the circuit court held that a group of UK employees was "a ‘public agency’ under the Open Meetings Act ... required to record and keep meeting minutes under KRS 61.835." (R. 421). Because neither party invoked the circuit court's "jurisdiction to enforce the provisions of KRS 61.805 to 61.850," KRS 61.848(1), the circuit court lacked subject matter jurisdiction to conclude UK violated the Open Meetings Act. "A judgment or order is void where it is entered by a court or agency which lacks ... subject-matter jurisdiction ...." Puckett v. Cabinet for Health & Fam. Servs. , 621 S.W.3d 402, 410 (Ky. 2021) (citations omitted). Therefore, this Court must reverse that part of the circuit court's opinion and order.

However, the circuit court acted within its jurisdiction in determining the UK group, and by implication UK itself, did not willfully withhold public records and, therefore, did not violate KRS 61.882(5). We affirm that ruling.

This Court's appellate review requires an understanding of the underlying events, beginning at the beginning.

THE "COMMITTEE"

The Appellant is the University of Kentucky. But this case is far less about that macro entity than it is about a micro entity known by several names and even generically as both "the committee" and "the group." We begin by determining its genesis. We ask who created it – and, just as importantly, who did not create it – starting with the UK Board of Trustees.

The University of Kentucky Board of Trustees is a public agency with final decision-making authority. Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm. , 732 S.W.2d 884, 886 (Ky. 1987). We know, of course, that "committees appointed by formal action of the University of Kentucky Board of Trustees are public agencies ...." Id. There is no evidence the Board of Trustees created the group the AG and circuit court determined was a public agency, nor is there any evidence it delegated any authority to the group.

However, we can infer from the retreat minutes of the "University of Kentucky Board of Trustees Healthcare Committee" (R. 21-27) that it – the Healthcare Committee – was "appointed by formal action of the University of Kentucky Board of Trustees" and is also, therefore, a public agency. Lexington Herald-Leader , 732 S.W.2d at 886. To be clear, the Healthcare Committee is not the entity deemed a public agency by the circuit court. We must dig further to understand the origin of that deeply embedded entity. We begin by asking whether the Healthcare Committee created it as a subcommittee.

Again, the record is devoid of evidence that the Healthcare Committee created the group. However, Dr. Hatemi cites the Healthcare Committee's minutes from a 2014 retreat to prove otherwise. So, what were those minutes about?

The minutes show, from a presentation by Dr. Michael Karpf,¹ that the Healthcare Committee was authorized to consider a five-year strategic plan, but the Healthcare Committee took no action on the report. (R. 21-22). From a similar presentation by Dr. Colleen Swartz,² we know the Healthcare Committee considered, but again took no action on, how well UK medical facilities met community health needs over the previous decade. (R. 22-23). No action was taken after Dr. Susan McDowell's³ presentation of the "Graduate Medical Education Institutional Review," nor are we told whether she conducted that review alone or with the assistance of a group that likely would have included her co-presenter, Dr. Chipper Griffith, who "reviewed the Rural Physician Leadership Program."⁴ (R. 24-25). Dr. Mark Evers presented an update on medical research, emphasizing the need for "enhanced collaboration" among the faculty's researching members. (R. 25-26). That leaves a final presentation reflected in the Healthcare Committee minutes – and it is the focus of Dr. Hatemi's argument.

The dean of the medical school was not in attendance at the retreat. (R. 21). The Chair of Internal Medicine filled in and gave an update. This appears to be the only time a faculty member of the "committee," so called, rather than the dean himself directly addressed the Healthcare Committee about the topic. (R. 483). The retreat minutes of the Healthcare Committee reflect that:

Dr. David Moliterno, Chair for Internal Medicine, presented an update on the Faculty Compensation Planning Committee which seeks to provide fair and equitable compensation for professional activities of physician faculty by incentivizing productivity through, 1) the use of objective measures to reward performance, 2) uncoupling bonuses from departmental fund balances linking instead to overall financials, and 3) standardizing DOE reporting. He reported that between 2011 and 2014 substantial progress has been made to add definition, consistency, and transparency to faculty efforts and compensation. As a result, salaries are more accurate and aligned with national benchmarks. Increasing emphasis will be placed on quality and group success. Ongoing strategies will work to preserve and advance the academic mission.

(R. 27). Like the other presentations, this one was informational and did not result in any action by the Healthcare Committee. Unlike the others, this presentation expressly refers to a "committee." But it does not reveal whether the Healthcare Committee created it. Discovery in circuit court would reveal it did not. In fact, discovery revealed there was little, if any, formality to its creation and existence.

When Dr. Frederick de Beer became dean of the UK College of Medicine in 2011, he and then Vice President of Operations, Rick Lofgren, tapped into the talent of the existing UK medical school faculty and "called the group of leaders together ... to help address and advise him [Dean de Beer] of certain matters of the college." (Deposition of David Moliterno, M.D., p. 6 (R. 587)). Those "certain matters" ranged from faculty parking to medical research. (Id. , pp. 36-38 (R. 594-95)). Medical faculty compensation was clearly among the matters discussed. (Id. , p. 47 (R. 597); Deposition of Clifton M. Iler, p. 24 (R. 616)). Obviously, the collection of faculty leaders who participated pre-existed their utilization as Dean de Beer's advisors. We then must ask whether Dean de Beer gave the group structure, or specific membership, or identified its leaders, or even gave it an official name? The record indicates he did not.

According to Dr. Hatemi's deponents, the assemblage of faculty was more accurately called a "group" because its membership, leader/facilitator, schedule, and even its name changed regularly.⁵ (See generally Moliterno Deposition and , e.g. , at p. 5 (R. 587) ("It was a group. I'm not sure it was an official committee, but you can call it that, sure."); Deposition of Marcus Randall, M.D., pp. 4-5 (R. 578-79) ("There is a group – yeah. There is a group in a [sic] meets monthly. It's called – and I don't know that the word ‘committee’ is used, but it's chairs and center directors ....")). Though UK counsel once identified the group's members as 18 department chairs plus appointees from the Kentucky Medical Services Foundation (KMSF),⁶ Marcus Randall, M.D., was Chair of the Department of Radiation Medicine at the time and he said he was never a member of a faculty compensation group. (Randall Deposition, pp. 4, 20 (R. 578, 582)). In fact, attendance at any particular meeting depended on the topic to be discussed. (See, e.g. , Moliterno Deposition, p. 50 (R. 598) ("It, again, depended on the topics of the agenda. Sometimes we invited people who were members of neither, I mean, a chair or a KMSF board. They may have been a department administrator or some – someone else.")).

Even when it comes to the group's name, the record is replete with utter confusion. (Randall Deposition, p. 5 (R. 579) ("I've heard of something generally called that, yes."); Moliterno Deposition, p. 6 (R. 587) ("You can call it a committee. I don't mind that. I was just trying to clarify."); Deposition of Robert S. DiPaola, M.D., pp. 4-5 (R. 601-02) ("what did you call it? ... I'm not...