Editor’s note: The following is a portion of the Kansas Open Meetings Act that deals with telephone conference calls and what may be discussed in executive sessions.

OPEN MEETINGS AND EXECUTIVE SESSIONS

1. Open Meetings

1. K.S.A. 75-4318 requires open meetings when a body is subject to the act.

1. Any person may attend open meetings. AG Opin. No. 80-43

2. The KOMA does not require that the public be allowed to speak or to have an item placed on the agenda (but check local ordinances and policies. K.S.A. 21-4101 prohibits disorderly conduct or disturbing a lawful meeting and provides for criminal prosecution).

2. Secret ballots not allowed, K.S.A. 75-4318(a). The public must be able to ascertain how each member voted. AG Opins. No. 86-176; 79-167; 81-106; 65-167; 93-55

3. Subject to reasonable rules, cameras and recording devices must be allowed at open meetings. K.S.A. 75-4318(e)

4. The KOMA does not dictate the location of the meeting, the size of the room, or other accommodation type considerations. The key to determining whether a meeting is “open” is whether it is accessible to the public. AG Opin. Nos. 86-153; 79-253; 82-133; 80-148

5. Telephone conference calls are allowed if the requirements of the act are met (i.e. notice and free access). AG Opins. No. 81-268; 80-173; 80-159

2. Executive Session K.S.A. 75-4319

1. Executive sessions are permitted for specified purposes, but first the body must convene an open meeting before public body can recess into executive session. K.S.A. 75-4319(a); AG Opin. No. 81-22.

2. Binding action may not be taken in executive session. (K.S.A. 75-4319(c); AG Opin. No. 91-31). Reaching a consensus in executive session is permitted. O’Hair v. U.S.D. No. 300, 15 Kan.App.2d 52 (1991). A “consensus,” however, may constitute binding action and violate KOMA if a body fails to follow up with a formal open vote on a decision which would normally require a vote. City of Topeka v. Watertower Place Development Group, 265 Kan. 148 (1998).

3. The decision to hold executive session is discretionary; the KOMA never requires an executive session. (Other laws or policies need to be considered, however.)

4. Procedure–K.S.A. 75-4319(a) requires a specific procedure which must be followed in order to go into executive session:

1. Formal motion, seconded, and carried

2. Motion must contain statement of (1) Justification for closure; (2) Subject(s) to be discussed; and (3) Time and place open meeting will resume.

3. Example: “Madam Chairman, 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.”

4. Motion for executive session should contain subject and justification statement, which are not the same thing. AG Opins. No. 91-78; 86-33. But see State v. U.S.D.A. 305, 13 Kan. App.2d 117 (1988). The subject is the subject listed in K.S.A. 75-4319(b). The justification is an explanation of what is to be discussed (without revealing confidential information.)

5. Executive session motions must be recorded in minutes. K.S.A. 75-4319(a) KOMA does not require other information to be recorded. Other minutes for open or executive sessions are discretionary, unless some other law requires them. AG Opin. No. 90-47

5. Subjects which may be discussed in an executive session:

1. Personnel matters of non-elected personnel

1. To discuss an individual, not groups. AG Opins. No. 81-39; 88-25; 80-102. But see 13 Kan.App.2d 117 (1988). The purpose of this exception is to protect the privacy interests of individuals. Discussions of consolidation of departments or overall salary structure is not a proper topic.

2. “Personnel” means employees of the public agency. AG Opin. No. 87-10

1. Personnel does not include appointments to boards or committees. AG Opin. No. 87-10

2. Personnel does not include independent contractors. AG Opin. No. 87-169

3. The KOMA does not give the employee a right to be present in the executive session or to force an open session. (Other laws or contracts may, however.)

4. This exception may be used to discuss applicants for employment. AG Opin. No. 96-61

2. Consultation with the body’s attorney

1. This is for attorney/client privilege so all elements of privilege must be present:

1. the body’s attorney must be present;

2. the communication must be privileged, and

3. no other third parties may be present. AG Opins. No. 78-202; 80-43; 82-130; 82-176; 82-247; 92-56; Privileged communication is defined at K.S.A. 60-426; Pickering v. Hollabaugh, 194 Kan. 804 (1965)

2. Cannot be used to discuss letter received from attorney if the attorney is not present. AG Opin. No. 86-162

3. Employer-employee negotiation

1. Public bodies can meet in executive session to discuss conduct or status of negotiations, with or without the authorized representative who is actually doing the bargaining. AG Opin. No. 79-125

2. Public bodies cannot have executive session under this exception when meeting with employees. AG Opin. No. 80-43

3. School Boards–special rules: K.S.A. 72-5423(b). AG Opin. No. 92-51.

4. Confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorship.

1. Economic development groups. AG Opin. No. 88-148

2. Must be for data truly confidential in nature. See K.S.A. 60-3320; Southwestern Bell Telephone Co. v. KCC, 6 Kan.App.2d 444, 457 (1980), rev. den. 230 Kan. 819 (1981); All West Pet Supply v. Hill’s Pet Products, 840 F.Supp. 1433, 1437 (Kan. 1993.)

5. Matters affecting a student, patient, or resident of public institutions

1. Must concern a particular person (not students in general).

2. Hearing must be open if requested by person involved.

3. Inmates as residents of institutions, see AG Opin. No. 80-102.

6. Preliminary discussions relating to acquisition of real property

1. Acquisition only, not sale of property which must be discussed in open meeting. AG Opin. No. 87-91

2. This exception can be used only when the primary focus of the discussion is real property; negotiating strategy alone is insufficient. AG Opin. No. 89-92.

7. Security, if open discussion would jeopardize security, K.S.A. 75-4310(13), as amended by L. 2005, Ch. 126 §4; any confidential records concerning security discussed in executive session are exempt from subpoena, discovery or other action.

6. Who can be present in an executive session– Only the members of a public body have the right to attend executive session. AG Opin. No. 86-14

1. Mere observers may not attend. Inclusion of general observers means the meeting should be open to all members of the public. AG Opin. Nos. 82-176; 86-143; 92-56.

2. Persons who aid the body in its discussions may be discretionarily admitted. AG Opin. No. 91-31

3. Johnson County school district; members of advisory boards have no right to attend. AG Opin. No. 86-143

4. County clerk has no right to attend executive sessions. AG Opin. No. 87-170

5. Non-clients cannot attend executive sessions for attorney-client privileged communication. AG Opin. No. 82-247