The Kansas Attorney General’s Office recently issued two official opinions (AGOs) that go a long way toward clarifying a provision of state law that allows many state, county, and municipal agencies to discuss public business in closed, or executive, sessions.
The Kansas Open Meetings Act (KOMA) generally requires government bodies to meet openly so that members of the public may observe officials discuss public business. However, KOMA allows officials to recess into executive session after “making a motion, which is seconded, containing (1) a statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume.” K.S.A. 75-4319(a).
When and how to “recess into executive session”
KOMA’s provisions about open meetings include a reference to adjournment of such meetings. However, KOMA does not define “adjourn” and also does explicitly say how adjournment of an open meeting relates to a recess for an executive session. As a result, there has been some dispute about whether officials legally must begin and adjourn an open meeting within one day’s time and whether a recess for an executive session must begin and end before adjournment of the open meeting. The issue came to public attention in 2017 when the Wichita Eagle objected to a decision by the Wichita School Board to meet for executive sessions over an eight-day period.
In AGO 2017-20, the AG’s office expressly defined and differentiated between the terms “recess” and “adjourn” in the context of entering executive session. Kan. A’tty Gen. Op. 2017-20. There, the Attorney General referenced Kan. A’tty Gen. Op. 1996-14 in opining that “[t]he term “recess,” as used in K.S.A. 2017 Supp. 75-4319(a), means a suspension of an open meeting. The term “adjourn,” as used in K.S.A. 2017 Supp. 75-4319(a), means ending an open meeting. A public body or public agency may only recess an open meeting to enter into a closed or executive meeting if the closed or executive meeting occurs contemporaneously with the open meeting. A public body or public agency has the discretion to designate the location of a closed or executive meeting if the location of the closed or executive meeting allows the public body or public agency to conduct the closed or executive meeting contemporaneously with the open meeting.”
What are “subjects to be discussed”?
In addition, although KOMA does not define a “statement describing the subjects to be discussed”, the Attorney General opined that “a public body or agency must do more than provide a generic or vague summary, or a list of the subject(s) to be discussed. However, the KOMA does not require that the statement describing what will be discussed to be so detailed that it negates the usefulness of a closed or executive meeting. The determination of whether a motion to recess into a closed or executive meeting sufficiently describes the subject(s) to be discussed in a specific situation is a factsensitive question which must be determined on a case-by-case basis.” Kan. Att’y Gen. Op. 2018-1.
“Justifications” are defined in KOMA
The “justifications” for recessing into executing session are expressly defined in the statute. Proper justifications for recess include personnel matters of non-elected officials, privileged attorney-client matters, employer-employee negotiations, confidential financial or trade secrets, student disciplinary matters, preliminary discussions of real estate acquisitions, security of public buildings and personnel, tribal-gaming compacts, security measures and records regarding child care facilities, maternity care and family daycare facilities. K.S.A. 75-4319(b).
Time and place to resume the meeting
The AG’s 2017 opinion makes clear that “a recess may not stretch across multiple days,” and that “a closed or executive meeting must be held contemporaneously with an open meeting.” Kan. A’tty Gen. Op. 2017-20.
The AG’s office should be commended for resolving the ambiguity that has plagued the executive session portion of KOMA in a manner that promotes transparency. This pair of opinions provide much guidance to agencies going forward.
Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government, and is an adjunct faculty member at Washburn University teaching Mass Media Law. Send him an email here.