Reasons for executive sessions under KOMA need clarity

An improvement is needed in the Kansas Open Meetings Act (KOMA) where it permits an executive body, such as a city commission, school board, or county commission, to “recess…open meetings for closed or executive meetings” under K.S.A. 75-4319(a). The closed meetings are commonly known as “executive session.” Under current law, the body can go into executive session only if it states on the record “(1) The justification for closing the meeting; (2) the subjects to be discussed during the closed or executive meeting; and (3) the time and place at which the open meeting shall resume.”

meeting room

The law provides some guidance for the second and third requirement. The subjects that may be discussed are  limited to the list set forth in K.S.A. 75-4319(b)(1) through (16), and the Attorney General’s Office has done a nice job collecting the relevant cases and Attorney General Opinions that clarify the statutory language on pages 12 through 15 of that office’s KOMA outline. Further, the statute’s requirement that the body announce the “time and place at which the open meeting shall resume” is self-explanatory.

Unfortunately, what constitutes a “justification” for going into executive session is murky. The statute, other than stating the requirement for a justification, is silent on the topic. Page 8 of the Attorney General’s Citizen’s Guide to KOMA/KORA defines the justification as “A brief description of the topic to be discussed in executive session without revealing confidential information.” However, page 11 of the AGO’s KOMA outline attempts to set forth a legal basis for the requirement, and cites a case (that appears to be good law) indicating that although the justification and the subject matter are not the same thing, the line between them is thin. For example, in the case, the court said “that the privacy rights of non-elected personnel subject to discussion is sufficient justification for a closed session.” State v. Board of Education of Unified School District No. 305, 13 Kan. App. 2d 117 (1988), HN 3.  (Emphasis added.)

Based on the ruling in that case, the AGO’s outline provides a sample motion to enter into executive session: “I move we recess into executive session to discuss disciplinary action against a student in order to protect the privacy of the parties involved. We will reconvene the open meeting in the conference room at 8:30 p.m.”

In light of the statutory language and the manner in which it has been interpreted in State v. Board, this motion is sufficient to permit the body to enter executive session. It lists a subject from the statute, specifically student discipline, which is included at K.S.A.75-4319(b)(5). It cites “privacy” as a justification.  And it lists the time and place the body will reconvene.

Thus, it appears that executive bodies are likely compliant with K.S.A. 75-4319 as long as they cite privacy as a justification for entering an executive session. Given the desire to recess to executive session is often driven by a desire to keep information confidential, the justification requirement doesn’t appear to have much substance.

In recognition of this flaw, the Senate Judiciary Committee introduced a bill during the 2016 session seeking to make the justification requirement more than pro forma. The bill would have required greater specificity about the subject to be discussed, and would have re-branded the “subjects” currently listed in K.S.A. 75-4319(b) as “justifications.” Although the bill died in committee, the fact remains that as long as executive bodies need not supply any substantial justification for recessing to executive session beyond “privacy,” the effectiveness or necessity of KOMA’s justification requirement is debatable.

Review of Oklahoma and Texas open meetings laws indicate that neither state requires a statutory justification for recessing to an executive session.  In fact, but for that omission, the Oklahoma statute has a lot in common with the Kansas statute, and simply lists “purposes” for which executive session are authorized in one section of its open meetings act. The Oklahoma statute’s “purposes” are generally analogous to the “subjects” in the KOMA. However, rather than simply allow public agencies to recess to executive session to discuss “personnel matters of nonelected personnel,” the Oklahoma statute is far more specific, preventing agencies from recessing to executive session to discuss personnel matters unless the purpose of the discussions is one or more of the following: “the employment, hiring, appointment, promotion, demotion, disciplining or resignation of any individual salaried public officer or employee.”

Texas open meetings law goes even further by devoting a specific provision to each purpose to recess to an to executive session, rather than simply place all the purposes in the same section, as in Kansas and Oklahoma. Although that method appears to be a bit clunky, it highlights the policy that executive sessions should be rare, and are only allowable under very specific statutory terms.

To improve KOMA, my proposed solution incorporates the more specific language found in the open meetings laws of Oklahoma and particularly Texas into the “subjects” that may be discussed in executive session. I have also deleted any reference to the confusing, and ultimately unnecessary, requirement for a justification.

PROPOSED REVISIONS, KOMA SUBJECTS FOR RECESS TO EXECUTIVE SESSION

K.S.A. 2016 Supp. 75-4319 would be hereby amended to read as follows: (a) Upon formal motion made, seconded and carried, all public bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings. Any motion to recess for a closed or executive meeting shall include a statement of: (1) The justification for closing the meeting; (2) the subjects to be discussed during the closed or executive meeting; and (3)(2) the time and place at which the open meeting shall resume. Such motion, including the required statement, shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.

(b)   No subjects shall be discussed at any closed or executive meeting, except the following:

(1)  The appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of Personnel matters of nonelected personnel, or to hear a complaint or charge against an officer or employee, except that any such person shall have the right to a public hearing if requested by the person; (See Texas Statutes Sec. 551.074)

(2) consultation with an attorney for the public body, or agency which would be deemed privileged in the attorney-client relationship; when the governmental body seeks the advice of its attorney about:

(A)  pending or contemplated litigation;  or

(B)  a settlement offer; (See Texas Statutes Sec. 551.071(1))

(3) matters relating to employer-employee negotiations whether or not in consultation with the representative or representatives of the public body or agency; (NOTE: This issue is now addressed in new section (b)(1))

(4)(3) confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships.  Factors to be considered in recognizing a trade secret are: (1) the extent to which the information is known outside the business, (2) the extent to which it is known to those inside the business, i.e., by the employees, (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information, (4) the savings effected and the value to the holder in having the information as against competitors, (5) the amount of effort or money expended in obtaining and developing the information, and (6) the amount of time and expense it would take for others to acquire and duplicate the information.  (See Southwestern Bell Telephone Co. v. State Corp. Commission, 6 Kan.App.2d 444, Syl. 5, 457 (1981))

(5)(4) matters relating to actions adversely or favorably affecting a person as a student, patient or resident of a public institution if personally identifiable information about the person will necessarily be revealed by deliberating the matters, except that any such person shall have the right to a public hearing if requested by the person or the person’s parent or guardian, if such person is under the age of 18; (See Texas Statutes Sec. 551.0821(a))

(6)(5)preliminary discussions relating to the acquisition of real property; matters relating to the purchase, exchange, lease, or value of real property if deliberation in an open meeting would have a detrimental effect on the position of the governmental body in negotiations with a third person.  (See Texas Statutes Sec. 551.072)

(7)(6) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 74-8804, and amendments thereto;

(8)(7) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 38-2212(d)(1), and amendments thereto, or K.S.A. 38-2213(e), and amendments thereto;

(9)(8) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 22a-243(j), and amendments thereto;

(10)(9) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 44-596(e), and amendments thereto;

(11)(10) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 39-7,119(g), and amendments thereto;

(12)(11) matters required to be discussed in a closed or executive meeting pursuant to a tribal-state gaming compact;

(13)(12) matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the public body or agency for purposes of this paragraph. For purposes of this paragraph, security means measures that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping. Security measures include, but are not limited to, intelligence information, tactical plans, resource deployment and vulnerability assessments;

(14)(13) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 65-525(f), and amendments thereto;

(15)(14) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 2015 Supp. 75-7427, and amendments thereto; and

(16)(15) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 2015 Supp. 46-3801, and amendments thereto.

(c) No binding action shall be taken during closed or executive recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.

(d) (1) Any confidential records or information relating to security measures provided or received under the provisions of subsection (b)(13), shall not be subject to subpoena, discovery or other demand in any administrative, criminal or civil action.

(2) (A) Except as otherwise provided by law, any confidential documents, records or reports relating to the prisoner review board provided or received under the provisions of subsection (b)(16) shall not be subject to subpoena, discovery or other demand in any administrative, criminal or civil action.

(B) Notwithstanding any other provision of law to the contrary, any summary statement provided or received under the provisions of subsection (b)(16) shall not be subject to subpoena, discovery or other demand in any administrative, criminal or civil action.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters.  Send him an email here.