Last Friday, a branch of the Wichita State University (WSU) Student Government Association (SGA), the Student Fees Committee, “closed the door to its meeting room in the Rhatigan Student Center Friday afternoon to deliberate about how to allocate between $9.53 and $9.82 million in student fees — claiming SGA is not a state agency, student fees are not state funds and, therefore, the meeting could be held behind closed doors.”
While “the student government’s decision to meet in private violates the spirit of the open meetings law and the need for transparency”, is the SGA subject to KOMA in the first place?
A nonprofit such as a student government association is subject to KOMA if the nonprofit: (a) receives or expends public funds; (b) is subject to control of governmental unit(s); and (c) acts as a governmental agency in providing services or has independent authority to make governmental decisions. Att’y Gen. Op. 2004-34; see FN. 4.
Contrary to the assertions by the SGA in the article, student fees clearly are public funds. Att’y Gen. Op. 1977-174, p. 2-3. Further, the organization is subject to the control of governmental units, specifically, WSU, a public university. However, does the SGA act “as a governmental agency in providing services or has independent authority to make governmental decisions”? Put another way, does the organization have sufficient governmental authority to be included as a “public body” under the KOMA?
The Kansas Attorney General considered this issue in the context of the KSU Student Senate in 1977. There, the inquiry was whether the Student Senate “exercises any administrative authority, either of the Board of Regents or of the chief executive officer of Kansas State University. If it does, it is subject to the open meeting law. If it does not, it is not.” Att’y Gen. Op. 1977-174, p. 3. The AG found that the KSU Student Senate did not possess that kind of authority in part because the student government “submits to the administration of the University proposed budgets for the allocation of student activity fees to eligible student organizations and groups.”
If the WSU student government organization also “submits” to WSU, then the Student Fees Committee is not a public body subject to KOMA, and its deliberations need not be conducted openly.
But even if the law can be interpreted to justify the ends of deliberating in secret, and beyond whether that opacity is good public policy, the university did itself no favors by sending mixed messages about why the meeting was closed, and especially lost credibility arguing that student fees are not public funds.
Moreover, if the law can be interpreted to prevent scrutiny of decisions related to public funding as long as a student government organization ostensibly makes the decision, maybe the legislature should consider changing it.
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.