One week after the South Central Kansas Medical Center Board of Trustees appeared to commit two technical violations of the Kansas Open Meetings Act (KOMA), the Cowley College Board of Trustees appeared to commit errors of the same nature at its meeting Monday night.
By not stating a subject to be discussed in their motion to recess into executive session, the college trustees committed the exact same error.
Additional violations appeared to occur, though, when the trustees used two different statutory justifications in one motion, and also did not state the time and place when the open meeting would resume. All three of these items must be included in any executive session motion.
In making its motion to enter executive session, the college board did not adhere to recently amended Kansas statute or a Kansas Attorney General’s Office opinion that clarified the changes to KOMA in January. Motions require these components in order to enter executive session:
- The justification for closing the meeting, as listed in KOMA;
- The subject(s) to be discussed during the closed session;
- The time and location at which the open meeting will resume.
“A motion to recess into a closed or executive meeting may only utilize one justification as listed in K.S.A. 2017 Supp. 75-4319(b),” states the attorney general’s opinion. Thus, using more than one of the justifications, as the college board did Monday, would violate this instruction.
A governing body “can only go to executive session for one of the justifications listed in K.S.A. 75-4319(b) at a time,” states a 2017 memorandum from the League of Kansas Municipalities discussing the changes to KOMA.
“To discuss matters under a different justification, the governing body would need to return to the open meeting and recess into a second executive session using a new motion.” This did not occur Monday night, however.
The attorney general’s opinion also states: “The statement (in the motion) describing the subject(s) to be discussed must be more than a generic or vague summary, or a list of the subject(s) to be discussed.” In this case, the trustees did not provide either a summary or a list.
Attorney and Kansas Press Association legal adviser Max Kautsch issued this statement after the hospital board meeting last week:
“My opinion is that when the (board) recessed into executive session … they did not provide a statement for why they went into executive session,” he said in a statement that is equally applicable to the action of the college board.
“The statute requires that a statement more than a generic or vague summary of matters to be discussed (has to be made).”
Last week, in one of its motions, the hospital board gave a statement regarding the nature of the business to be discussed, including the justification that it was for a matter of attorney-client privilege, but the accompanying statement lacked any additional detail.
The hospital board’s attorney, Otis Morrow, was not present that night, but the college board’s attorney, David Andreas, was present Monday.
Recording of motion by trustees
The college board of trustees entered executive session citing both matters of non-elected personnel and attorney-client privilege, to return to open session in 30 minutes. Although attorney-client privilege was cited, Andreas was not initially present during the executive session.
Outside the room where the closed meeting was taking place, Andreas told Daily Bytes that it did not matter how the executive session motion actually was vocalized, because the board minutes instead would reflect how the motion was written in the board’s agenda packet.
This is not correct, however, according to both the revised open meetings act and the January opinion issued by the Kansas attorney general.
“The complete motion shall be recorded in the minutes of the meeting,” states K.S.A. 75-4319, which was revised July 1, 2017, by HB 2301.
“A motion to recess into a closed or executive meeting must be recorded in its entirety in the minutes of the public body or agency,” the attorney general’s opinion clarifies. “The recording of the motion is not ‘complete’ if it merely summarizes the actual motion in a manner that addresses only the three statutory elements, but omits other content of the motion as it was in fact made.”
Reached Wednesday, Kautsch agreed with both legal publications and said college staff should not alter the motion from how it was made.
“The motion to recess into executive session must be recorded in the minutes, which are taken to document the body’s decisions,” he said.
“Thus, a motion based on the wording of the agenda is insufficient unless the language on the agenda exactly tracks the statements made in the meeting.
“Generally, motions to recess into executive session must be made verbally in open session and seconded. The motion, as recorded in the minutes, must include one of the listed justifications set forth in K.S.A. 75-4319, the time the meeting will resume and a brief statement of the subjects to be discussed.”
The only state statutory requirements regarding the recording of minutes concern executive sessions. This is because they represent the only time the Kansas Open Meetings Act can be legally suspended or circumvented, and legislators intended for the reasons to do so to be limited.
Even if Andreas’ stance is correct, though, the motion as written in the board agenda also is legally incorrect because it also lists two justifications for closing the meeting in one motion, fails to provide a statement regarding the subjects to be discussed that pertain to attorney-client privilege and lists an amount of time to be spent in executive session, but not the time and place the open meeting will resume.
Andreas later was called into the executive session in progress, a deviation from normal procedure for governing bodies. Typically, any non-elected personnel who are asked to join the governing body do so at the beginning and also are named in the motion.
When the first executive session ended after 30 minutes, the college board did not clearly reconvene in the president’s dining room at the McAtee Dining Center, but instead called board clerk Tiffany Vollmer into the room so she could record an additional executive session motion.