The kansas open meetings act

InterHab 7.15.08

THE KANSAS OPEN MEETINGS ACT
I. INTRODUCTION
This paper provides an outline of the provisions of the Kansas Open Meetings Act (KOMA), including interpretations of the law found in opinions of the Kansas Attorney General (cited as A.G. No. ) and in decisions of the Kansas courts. Where text is intended to apply to only CDDOs or CSPs such will be so indicated. Where text applies to both CDDOs and CSPs the term “entity” will be used.
A. A Statutory Right to be Present.
All 50 states have laws requiring meetings of governmental bodies to be held in sessions which are open to the public. The U.S. Constitution does not guarantee a right of access to sources of information within governmental control, nor is any right of access found in the common law.
B. KOMA Public Policy.
KOMA expressly states the policy of the State of Kansas regarding open meetings. The law establishes the basic policy of open government, requiring meetings of governmental bodies to be properly noticed and open to the public, although in certain cases they may be closed.
1. K.S.A. 75-4317 provides that "In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of the state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public."
2. Courts have recognized that KOMA was enacted for the public benefit and have construed it broadly in favor of the public to give effect to its specific purpose. (State ex comma. Murray v. Palmgren, 231 Kan. 524, 531 (1982)).
3. Open meeting laws such as KOMA are designed to foster accountability, an informed electorate and the sovereignty of the people. Such laws are based on the principle that public entities were created as instruments of government and those public entities should not themselves have the power to decide what is good for the public to know.


C. Conduct of Public Meetings.
The purpose of KOMA is to inform the public, not to guarantee public participation at governmental meetings. KOMA is a right held by individual members of the public to be present, listen and evaluate. There is no right to speak or vote or otherwise participate under KOMA. KOMA does not prohibit an entity from imposing reasonable rules regarding the orderly conduct of persons attending its meetings (K.S.A. 75-4318(e)). Such reasonable restrictions are consistent with the policy of KOMA because they do not interfere with the statutory right of a person to be present at meetings of the body.

II. SCOPE OF KOMA

1. 
   Determining Which Bodies Are Subject to KOMA
   

It may seem to be a reach for CDDOs and CSPs to fall within the scope of KOMA. As will be seen while some CDDOs clearly are covered others may not be. As for CSPs, it is likely most are not. But beware; the law is less than clear.

In determining whether a particular entity is subject to KOMA, the Kansas Supreme Court has adopted the following test: "First, the group of people meeting together must be a body or agency within the meaning of the act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body which is so financed." (Murray v. Palmgren, supra.)
To break the test for applicability down by its component parts:
1. Bodies or agencies. This requires that the entity must be public in nature in order to be covered by KOMA. The terms “legislative” and “administrative” imply that the body must necessarily be acting in some governmental capacity. There are several Attorney General opinions stating that private entities whose only relationship to government is contractual are not subject to KOMA.

2. All legislative or administrative bodies, including boards, commissions, authorities, etc. Because members of the board of trustees of a city hospital were appointed by the city council, the board of trustees was a "subordinate group" of a legislative body which receives and expends public funds. (A.G. No. 86-38.) An advisory board to a county fire district was appointed by the board of county commissioners and was therefore a subordinate group subject to KOMA because its parent body (i.e. the county board) was an administrative body which received and expended public funds. (A.G. No. 86-84.)

3. Of a political or taxing subdivision.
4. Receiving or expending and supported by public funds in the whole or part. KOMA was intended to cover those entities that expend public funds. Courts have applied the following two- part public funds test to determine whether particular entities are covered.
(1) Does the entity itself receive or expend public funds? Or

(2) Does a parent group of the entity receive or expend public funds?

If the answer to either of these questions is “yes”, then the entity “passed” the public funds portion of the test for applicability of KOMA.
Courts have held that an entity can be subject to KOMA when a parent group of the entity receives or expends public funds regardless of whether the entity itself does or does not. The board of trustees of a county hospital is a subordinate group of the county, and is therefore subject to KOMA. Murray v. Palmgren, 231 Kan. 524 (1982). A non-elected citizen’s board established by a county commission to oversee a county hospital is covered by KOMA even though the non-elected board itself does not have the authority to receive or expend public funds. Memorial Hospital Association, Inc. v. Knutson, 239 Kan. 663 (1986).

2. 
   Attorney General Opinions Involving CDDOs
   

The Attorney General has issued numerous opinions regarding the applicability of the KOMA to particular bodies. In a 1994 opinion (A.G. No. 94-111) the Attorney General took a look at a CDDO, Southwest Developmental Services, Inc. (SDSI), and concluded that it was a “public agency” subject to KOMA. A.G. No. 94-111 also favorably cited several earlier opinions relevant to CDDOs (A.G. No. 87-188, Cowley County Developmental Services and A.G. No.83-184, Big Lakes Developmental Center, Inc.). Portions of the 1994 opinion on SDSI follow below:

“If SDSI is a community facility for the mentally retarded organized in accordance with the provisions of K.S.A.19-4001 et seq., then its governing board is clearly a public agency within the meaning of the KOMA. However, if SDSI is not a community facility, but a nonprofit corporation which contracts to provide certain services for the county, we need further analysis. The board or boards of county commissioners may contract with the nonprofit corporation to provide either mental health services or services for the mentally retarded, or both such services, pursuant to K.S.A. 19-4007. . .

“We have previously dealt with the issue of application of the KOMA to what appear to be similar non-profit corporations. We have concluded that Cowley County Developmental Services (CCDS) and Project Independence are administrative bodies which receive and expend public funds, therefore, they were subject to the KOMA. Attorney General Opinion 87-188. We distinguished the ruling in Knutson on factual grounds, stating that the hospital was an independent entity not subject to any governmental control, whereas the CCDS and Project Independence must meet SRS guidelines and obtain its approval on their budget and program. . . .

“SDSI is subject to close monitoring by the county in budgetary matters, and the SRS with regard to programs provided. SDSI provides services for the mentally retarded residents of the county in compliance with the statutes. We conclude that the first prong of the test for KOMA application is satisfied because, SDSI is an agency of the county and SRS, is under the supervision of those governmental entities, providing the same services which could have been provided by the county or SRS.
“We are informed that SDSI received. . . tax levies from the participating counties as authorized by K.S.A. 19-4004. . . in federal funds and. . . in state funds in 1994. It is clear that SDSI receives, expends and is supported by public funds, thus satisfying the second prong of the test as well. . .
“In conclusion, the board of directors of SDSI is a “public body” within the meaning of the KOMA, therefore it must comply with the requirements of the KOMA.”
C. Attorney General Opinion Involving a CSP – Sheltered Living, Inc.
In 2004 the Attorney General was asked whether Sheltered Living, Inc., a CSP in Shawnee County, was subject to KOMA and KORA.
In A.G. No. 2004-34 the Attorney General went through a detailed analysis of the criteria applied to determining whether a body is subject to KOMA.
The Opinion begins by stating:
KOMA “…can apply to not-for-profit corporations under certain circumstances. The outcome is entirely dependent upon the facts surrounding the specific corporation’s creation, powers, and funding. Thus, we must first examine the nature of this particular corporation.”
The facts regarding Sheltered Living that were deemed relevant to the KOMA analysis included:

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  “This corporation was not created by a governmental entity or by specific legislation enacted by Kansas law makers.”
  

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  “The original board of directors was elected by the incorporators, and subsequent boards have been elected by the voting members of the corporation.”
  

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  “No governmental entity has any role in the selection or election of directors. There are currently no public officials who sit on this corporation’s board of directors.”
  

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  “…private individuals, not associated with or appointed by a specific governmental entity created and remain in control of the daily operation of this not-for-profit corporation.”
  

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  “Sheltered Living operates autonomous from SRS and SRS has no authority in developing or administering Sheltered Living policies or how federal or state money paid to Sheltered Living is to be spent.”
  

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  “…87% of Sheltered Living, Inc’s funding is provided by or through some governmental entity or involvement with a governmental program. However, we note that of those funds, only 10% come directly from grants or levies. The remainder appear to be largely connected with provision of services to clients who are eligible for government assistance.”
  

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  “All programs and policies are designed, developed and administered by Sheltered Living.”
  

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  “SRS has no input into the development or approval of Sheltered Living’s budget.”
  

In applying the facts surrounding Sheltered Living to KOMA, the Opinion stated:

“…KOMA applies to (1) all legislative and administrative bodies, state agencies, and political and taxing subdivisions (2) which receive or expend and are supported in whole or in part by public funds… Both tests must be met for the KOMA to apply to a not-for-profit corporation.
“When applying these tests to a not-for-profit corporation, this office considers the following factors: (a) whether the corporation receives or expends public funds; (b) whether it is subject to control of governmental unit(s); and (c) whether it acts as a governmental agency in providing services or has independent authority to make governmental decisions. …receipt of public funds alone does not automatically trigger application of the KOMA. Rather, the entity in question must also somehow be subject to the control of the governmental entity and/or be acting as a governmental agency in providing governmental services.
“…in order for the KOMA to apply, there must be some degree of governmental input in creating the entity or some on-going governmental control over the entity, as opposed to general regulation of the type of business in question. Providing services to the mentally disabled is not a service that is provided only by the government.”
In concluding, A.G. No. 2004-34 said:
“The facts presented in connection with Sheltered Living, Inc. indicate that this not-for-profit corporation was created by private citizens to provide services to other private citizens, that it remains an entity whose daily operations are entirely controlled by private citizens, and that the only source of governmental control that has ever been exercised results from contractual terms or governmental regulation of this particular type of service and business. While Sheltered Living, Inc. receives at least 87% of its funding from local, state or federal governmental entities, at least 75% of that amount is the result of providing services. Moreover, receipt of public funds alone is not dispositive in determining if the KOMA applies to a corporation. Thus, based upon the facts presented, it is our opinion that Sheltered Living, Inc. is not subject to the KOMA.”
D. Indications that an Entity is an “Agency” for KOMA Purposes:

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  Does it receive, hold and expend public funds?
  
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  Does it accomplish public ends?
  
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  If it did not provide services, would it fall to the state or its local government subdivisions to provide them?
  
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  Does it have the authority to make governmental decisions and to act for the state?
  
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  Does it rely upon the power of the government (state or local) in the exercise of its functions?
  
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  Is it established by action of a governmental unit?
  
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  Is its board appointed by a governmental unit or are representatives of a governmental unit sitting as board members?
  
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  Is it subject to governmental audits or otherwise have its business procedures supervised by the state or its subdivisions?
  

The answers to these questions go a long ways toward determining whether a nonprofit corporation acts as a governmental agency in providing services to the public, and consequently is subject to KOMA.

In short, the analysis is designed to reach a conclusion as to whether a CDDO or a CSP is a public agency created or authorized by the State to aid it in, or to take charge of, some public work undertaken for the general welfare.

III. APPLYING KOMA

A. "Open" Meetings
1. Whether or not a meeting is required to be open under KOMA is a question of law, but whether or not a meeting is conducted in the "open" is a question of fact. In one Kansas case, it was alleged that the city commission members spoke too softly and did not allow the audience to view the exhibits and documents they were discussing.
2. If a meeting is held at an inconvenient location or in a room so small as to make it inaccessible for public attendance, the meeting may be challenged as closed in violation of KOMA.
3. The key to whether the location of a meeting subverts the public policy favoring openness is the accessibility of the meeting to the public (A.G. No. 86-153). For example, one Kansas city was told that its proposed retreat to Colorado to discuss governmental business would be improper because the gathering would be unreasonably inaccessible to residents of the city and thereby constitute a meeting which is not "open" to the public. (A.G. No. 82-133.)
B. Meetings Covered by KOMA
K.S.A. 75-4317a as amended by the 2008 session of the Kansas Legislature, defines "meeting" as "any gathering or assembly in person or through the use of a telephone or any other medium for interactive communication by a majority of the membership of a body or agency subject to this act [KOMA] for the purpose of discussing the business or affairs of the body or agency."
Only meetings which have all the following three elements are subject to KOMA:
1. "Interactive Communication"
a. Interactive communication includes electronic mail (A.G. No. 95-).
b. Prior to 1994, the KOMA contained a requirement that a meeting be "prearranged." The "prearranged" element to KOMA's definition of a "meeting" no longer applies. The definition of meeting, which includes electronic communication, means that bodies need to be cautious about their use of e-mail and similar technologies for spontaneous communications. If a quorum participates, such communications can be lawfully used under KOMA only after notice and access requirements have been met. An entity should seek the advice of an attorney if electronic means of communication are used with and/on among members of its board of directors.
2. "Majority of the membership of a body"
a. Determining a majority. A majority means the next whole number greater than one-half the total number of members. (A.G. No. 2002-41.)
3. "Discussing the business or affairs of the body"
a. It is not necessary for "binding action" to be taken before a violation of KOMA can occur. Discussion alone can trigger KOMA.
b. This element of KOMA covers work sessions and informal meetings before and after the regular meeting, as well as meetings with special interest groups. For example, entity board members may attend and participate in conventions and similar educational programs, so long as members do not use these occasions to discuss specific business or affairs of the body. (A.G. No. 82-133.) Informal gatherings of a quorum of a body to discuss business, which are held prior to, during or immediately following regularly scheduled meetings, are subject to the requirements of KOMA. (A.G. No. 81-262.) Meetings involving boards of more than one CDDO and/or CSP do not come under the scope of KOMA unless a quorum of any one or more bodies attends. (A.G. No. 84-103.)
C. Notice of Meetings
Even if you "let the public in", a meeting isn't "open" if the public is not informed of the time and place of the meeting. K.S.A. 75-4318 sets out the law on requesting and providing notice of meetings.
1. Notice is required to be furnished only to persons requesting notice K.S.A. 75-4318(b). An entity can require a person to "renew” his or her request for notice each year.
2. Notice does not have to be in written form. Notice must be given without charge to the person requesting it, and regardless of the identity or residence of that person.
3. Notice can be requested of all regular and special meetings. If a public body has regularly scheduled meetings the notice requirement is met by providing a single notice containing a list of such meetings, unless chance or special meetings occur. (A.G. No. 86-133.)
4. Notice is to specify date, time and place of meeting.
5. The duty is on the presiding officer of the meeting to provide notice.
6. Adjourned Meetings. KOMA does not require that additional notice be provided for meetings which are adjourned to be continued at a specified date, time and place. KOMA requires only that meetings not be adjourned "in order to subvert the policy of open public meetings". (K.S.A. 75-4317 (b)).
D. Agenda

Nothing in state law requires a CDDO or CSP board, committee, etc., to prepare and publish an agenda. However, if an agenda is prepared, it must be made available to anyone requesting it before the meeting. (K.S.A. 75-4318(d)). Likewise there is no state law requirement to mail out agendas if one can be obtained at a public place (A.G. No. 79-218). If there is an agenda, it can be amended (U.S.D. No. 407 v. Fisk, 232 Kan. 820 (1983)).

IV. EXECUTIVE (CLOSED) SESSIONS
A. The authority for calling an executive session, and the procedure to be followed, is set out at K.S.A. 75-4319.
B. Procedure for recessing to executive session:
1. The entity must first convene an open meeting before it recesses (not adjourn) to executive session. Formal motion to recess to executive session necessary, seconded and carried. Motion must contain (1) justification for closing the meeting, (2) subjects to be discussed, and (3) time and place the open meeting is to resume. The Attorney General, in A.G. No. 91-78, stated that "...the justification statement should be more than a reiteration of the subject. KOMA does not require the justification statement to be so detailed that it negates the usefulness of an executive session. However, K.S.A. 75-4319(a)(2) requires a justification statement to be contained in the motion and it is our opinion that this statement should explain why an executive session is necessary or desirable." See also A.G. No. 86-33.
2. Open meeting is to be recessed but not adjourned.
3. Motion should be recorded and maintained in the minutes of the entity.
4. Discussion in executive session must be limited to subjects identified in the motion.
5. A 1988 decision the Kansas Court of Appeals held that when an entity, lawfully recessed to an executive session, seeks to discuss topics some of which are exempt and some of which may not be exempt under KOMA, if segregation of the materials into open and executive session would make a coherent discussion pragmatically impossible, it is reasonable to deal with the topics entirely in the executive session. (State v. USD No. 305, 13 Kan. App.2d 117.)
6. After the executive session, the board must return to open meeting to either continue business or adjourn the meeting.
C. Subjects appropriate for Executive Session.
1. Personnel matters of non-elected personnel.
a. Intended for discussion of individuals, not general personnel policies. The Attorney General has opined that this exception cannot be used to discuss groups of employees or issues affecting employees in general, but can only be used to discuss individual employees. (A.G. 81-39.) That interpretation appears to be based upon the understanding that the exceptions to KOMA were enacted to protect the privacy of individuals, and such privacy concerns do not exist when employees as a whole are discussed.
b. Employee can be, but does not have to be, present.
c. The Attorney General has opined that this exception does not extend to persons appointed to public boards and committees as they are public officers not employees, and only employees can be personnel. Therefore, according to the Attorney General, discussion concerning the qualifications of candidates for such appointive positions cannot be held in executive session. (A.G. No. 87-10.) However, it should be noted that the Attorney General's failure to take a similar position in an opinion letter of March 16, 1990 regarding Washburn University, and the failure of the Attorney General to make this same argument in the case of State v. USD No. 305, which involved executive session discussions about school administrators and appointments of citizens to an investigatory committee, could indicate a retreat from that earlier opinion. The Attorney General has also opined that independent contractors hired by public bodies are not employees. (A.G. No. 87-169).
2. Consultations with attorney on matters that would be deemed privileged in attorney-client relationship. To use this as the basis for calling an executive session the attorney must be present. (A.G. Nos. 82-247; 81-162.). If third parties (i.e. persons other than the governing body and the attorney) are present, the attorney-client privilege may no longer be valid, and such a meeting may be subject to KOMA. (See also Sub-section D.2. below).
3. Employer-employee relations. (A.G. No. 79-125).
4. Confidential data relating to financial affairs or trade secrets of second parties. (A.G. No. 88-148; Southwestern Bell Telephone Co. v. Kansas Corporation Commission, 6 K.A.2d 444 (1981)).
5. Matters relating to actions adversely or favorable affecting a person as a student, patient or resident of a public institution, except that any such person shall have the right to a public hearing if requested by the person.

6. 
   Acquisition, but not sale, of real estate. (A.G. No. 87-91; 88-92.)
   

7. Security of a public body or agency, public building or facility or the information system of a public body or agency, if open discussion would jeopardize security.

D. Common problems associated with calling and conducting Executive Sessions.
1. Taking binding action. Even though an executive session is lawfully called and conducted, that does not permit the body to take binding action during the executive session. Binding action can only occur at the open public meeting. (K.S.A. 75-4319(c)). The Attorney General has opined that binding action did not occur, in the context of hiring personnel, where a secret ballot was taken at an executive session and a decision reached to offer a contract of employment to a particular individual, because that contract was subject to subsequent ratification by the governing body. "If actions taken in an executive session do not bind the public body to a particular course of action..." the action taken at the executive session does not violate KOMA. (Letter opinion of March 16, 1990).
2. "Outsiders" at executive sessions. Only the members of the public body have the "right" to attend executive sessions of that body. Officials should recognize the risk jeopardizing the legality of an otherwise lawful executive session by inviting in "outsiders" to observe the proceedings. While non-members may be invited to provide information or to participate in the body's deliberations, non-members should not be invited merely as observers. (A.G. Nos. 86-143, 82-176, and 80-43.)
3. Subsequent public disclosure of discussion. KOMA does not provide penalties for public discussion of matters discussed in executive sessions. Public bodies that have their lawful executive sessions "undone" by subsequent acts of persons in attendance may desire to adopt their own guidelines for subsequent public dissemination of matter discussed at executive session.
4. Records of executive session. Records made at executive sessions are not "closed" to public inspection merely because the records relate to a matter lawfully discussed in an executive session. If the record so made is not covered by an exception under the Kansas Open Records Act (e.g. a personnel-related record), then it likely is required to be open to public inspection.
5. Burden of proof. When an allegation is made that an executive session was improperly convened or conducted, the burden of proof is upon the body to show that the executive session was not held in violation of KOMA. Technical violations generally will not be penalized, because KOMA provides penalties only for meetings which are not substantially in compliance with the Act. (K.S.A. 75-4320(a)).

V. PENALTIES AND ENFORCEMENT
A. Actions Brought by Attorney General or County or District Attorney
1. Up to a $500 civil fine for knowing violation or intentional failure to give notice--specific intent to violate KOMA is not required. To knowingly violate KOMA means to purposefully do an act prohibited by KOMA. (Murray v. Palmgren, supra).
2. Any action taken by the body in violation of KOMA is voidable if suit is brought by the Attorney General or county or district attorney within 21 days of the meeting where the alleged violation occurred. (K.S.A. 75-4320.)
3. In 2000, greater enforcement authority was given to the Attorney General and district and county attorneys, including the power to subpoena witnesses and evidence, take sworn testimony and to serve interrogatories. (K.S.A. 75-4320b.)
B. Action Brought by any Private Party
1. Injunction, mandamus, etc. may be ordered by the district court. (Stoldt v. City of Toronto, 234 Kan. 957 (1984).)
2. Court costs. Awarded to plaintiff if a violation is found by the court. Court costs can be awarded to a defendant CDDO if court finds lawsuit was frivolous. (K.S.A. 75-4320a.)
C. Burden of Proof Upon Public Body
The burden of proof is on the public body to show that a challenged action did not violate KOMA. The courts will look to the spirit of the law and overlook mere technical violations where the public body has made a good faith effort to comply and is in substantial compliance with KOMA, and where no one is prejudiced or the public's right to know has not been effectively denied. (Stevens v. Board of Reno County Commissioners, 10 K.A. 2d 523 (1985)). (K.S.A. 75-4320a.)

VI. PROBLEM AREAS WITH KOMA
A. Right to Attend vs. Right to Participate.
Public's perception that KOMA creates a right to participate in the proceedings instead of just a right to attend and listen.
B. Recording Meetings.
Dealing with citizens who demand the right to record a meeting either with audio or video equipment. KOMA specifically provides that a public agency cannot prohibit the use of cameras, lights and recording devices, however it expressly authorizes the adoption of reasonable rules of conduct regulating such devices. (K.S.A. 75-4318(e).)
C. Executive Sessions
1. Knowing when, and how, to lawfully recess to executive session.
2. Bringing in outsiders, especially the media, out of a desire to "prove" that executive sessions are being conducted lawfully.
3. Subsequent disclosure of discussions lawfully held during executive session.

VII. SUGGESTIONS
A. Understand the "spirit" as well as the letter of the law -- a public policy favoring openness in the operation of those public entities which are subject to KOMA.
B. Also recognize the fact that the news media and Attorneys General have a history of vigilance concerning allegations of violations of KOMA.
C. Do not apologize for the lawful use of KOMA when its provisions provide for the exclusion of the public. The public's interest is not always furthered by the discussion of certain matters at open meetings.
D. Do not make your entity’s duties under KOMA greater than the law requires. E.g., KOMA does not cover boards, committees, etc. comprised of entity staff. The “agency” covered by KOMA is the entity’s Board of Directors, and certain subordinated bodies created by the Board, usually, but not always, those with Board members.
E. Be aware of the resources available to you over the Internet – most notably the summary of KOMA and legal opinions on KOMA available at the Kansas Attorney General’s website. Also confer with your agency’s legal counsel as questions of KOMA application and compliance arise.