photo by: Conner Mitchell/Journal-World

COVID-19 protocols adorn a doorway on the University of Kansas campus.

The University of Kansas won’t say whether meetings of a nine-member medical advisory team tasked with monitoring the school’s reopening process during the COVID-19 pandemic — and potentially making substantive decisions about KU’s operational status — are open to the public.

And even if the group’s discussions are open to the public going forward, what KU’s Pandemic Medical Advisory Team talked about during its weekly calls, from its formation in late June to now, is a mystery, the Journal-World has learned.

KU told the newspaper late Tuesday in response to a Kansas Open Records Act request that it had no records of past meeting minutes from the advisory committee, which consists of area medical doctors and health experts — including KU Chancellor Douglas Girod, who spent decades practicing as a head and neck surgeon.

KU’s handling of the information discussed in past PMAT meetings almost certainly violates a state law called the Kansas Open Meetings Act, according to Max Kautsch, a Lawrence-based lawyer specializing in First Amendment law and government transparency. And if KU doesn’t clearly open future meetings to the general public going forward, Kautsch said the university could face legal complaints similar to an ongoing dispute in the neighboring Blue Valley School District.

The university disputed claims it was violating the state’s Open Meetings Act, which requires meetings involving public agencies — which KU is — that relate to the business of that agency to be open to the general public. KOMA also requires that any subordinate committees (for example, committees that have a singular focus or task) related to that agency be open to the public as well.

A KU spokesperson said that even for organizations subject to KOMA, there is no requirement that the agency take minutes of meetings, nor that it publicize the meeting is happening unless specifically requested. While this is accurate, the Journal-World confirmed Wednesday that at least two high-ranking faculty members have asked for access to information and better transparency surrounding PMAT meetings since the committee was formed.

The university did not provide clarification to follow-up questions about whether it believed the meetings were subject to KOMA — or if not, what justification it used to make that determination. If KU has determined the meetings are open to the public, it is unclear what, if anything, KU has done to make that known to the public.

For instance, the two faculty leaders who have requested access to information from the medical advisory committee said they never received any clear answers from KU officials, let alone whether the meetings were open for them or the public to attend.

The Journal-World on Thursday asked for clarification on that matter, but KU simply repeated its previous response asserting that the university had not violated the Open Meetings Act and told the newspaper that any other suggestion or insinuation “would be inaccurate.”

How the Pandemic Medical Advisory Team was formed

Girod announced in a campus message on June 29 that KU had created the Pandemic Medical Advisory Team, which would be tasked with evaluating many factors and guiding the university’s reopening process during the COVID-19 pandemic.

Since it was formed, the committee has met at least weekly to discuss the latest information regarding the pandemic and its possible impact on Kansas’ flagship university. In public messages, Girod has described the work of PMAT as helping to “inform our decisions” related to COVID-19 and using data and science to help guide the decisions of KU officials.

But when Girod approached now-team members about serving on PMAT — just one day before its creation was announced publicly — he indicated that the team would actually have decision-making abilities. In similar emails sent to the other eight PMAT members, the chancellor said that part of the weekly team call would involve “making a determination” as to whether KU needed to adjust its plans moving forward.

Most notably, Girod also told PMAT members that in a “worst case scenario” the team would need to determine whether or not to close KU campuses and move once again to remote learning. The Journal-World obtained the emails through the same open records request that revealed a lack of meeting minutes.

And while Girod in mid-August released a decision-making document that detailed generally the metrics the committee would be examining throughout the semester, PMAT’s actual deliberations and interpretations of the current status of the COVID-19 pandemic have been entirely shielded from public view.

The relevance of the Kansas Open Meetings Act

Kautsch, the Lawrence-based government transparency lawyer, said that KU’s handling of information from the PMAT isn’t legal under the Kansas Open Meetings Act. The issue at hand, he said, mirrors a recent and ongoing dispute in the neighboring Blue Valley School District.

There, a reopening committee also made up of doctors and other health experts determined that the district would allow elementary school students to come to school part-time, while middle school and high school students began the school year entirely online. The committee and district also suspended all sporting events.

The problem? The deliberations weren’t open to the public, and upset parents and students found out when the district’s superintendent announced the decision — also known as a binding action on the agency’s functions. KOMA forbids agencies from taking binding action outside of the public eye, which is where the dispute lies in Blue Valley.

KU’s handling of similar information is actually more cut-and-dried in terms of how it violates the law, Kautsch said. This is because Girod is a sitting member of the advisory team while also being the ultimate decision-maker for KU operations.

“If KU created the ‘medical and advisory team,’ recent opinions by the Attorney General’s Office indicate that it is a ‘subordinate group’ subject to the state’s open meeting’s laws,” Kautsch said. “But even if it can be argued that the chancellor, individually, created the team, the email he wrote suggests that the team has authority to make decisions about various critical issues related to the functioning of the university, including whether to close campus. If the team’s role is to make such decisions, open meetings laws apply.”

KU spokesperson Erinn Barcomb-Peterson disputed the notion that not recording minutes of PMAT meetings, or failing to publicize them, was a violation of KOMA.

“… There is no provision in Kansas law that requires minutes of meetings to be prepared, even of groups that are subject to KOMA,” she said in an email. “Also, KOMA does not require that any notice (of a meeting) be given unless it is requested.”

The Journal-World did not receive any clarification to a follow-up question asking whether her response meant that KU does consider the medical advisory team’s meetings to be subject to the open meetings law. The Journal-World specifically asked whether members of the public would be allowed to attend the next meeting of the medical advisory team, and did not get an answer to that question.

The Journal-World, under provisions of the open meetings law, has asked for notice of the next meeting, but has not yet received such notice.

Transparency at the University of Kansas

Two KU faculty leaders confirmed to the Journal-World that they’ve been asking for access to information about PMAT and its meetings since it was formed. If the meetings are deemed to be covered by the open meetings law, KU arguably would have been required under the law to notify those faculty leaders that the meetings were open and the date and time of any scheduled meetings.

Lua Yuille, a law professor and the president of KU’s Faculty Senate, said university governance organizations have asked for details about the function of the advisory committee repeatedly and haven’t gotten any clear answers. Yuille said it highlighted ongoing concerns about transparency when told KU had no records of past PMAT meeting minutes.

“So I find that frustrating but not surprising,” she said. “I don’t believe that the goal was to allow the chancellor and the administration to do whatever they wanted and say it was based (on) science, but when you don’t have meeting minutes … it leaves that impression. This continues to be a part of our problem with transparency, communication and collaboration.”

Yuille’s counterpart in KU governance, Sanjay Mishra, serves as the president of KU’s University Senate. He also confirmed to the newspaper that his organization has asked for more transparency surrounding the advisory committee on numerous occasions, and said the lack of records detailing the group’s meetings was problematic.

“That bothers me a lot. One of the things we have asked forever is to tell us what the model is that you’re using, how are you developing it and putting it out in the public,” Mishra said. “I can trust, but until they put it out I cannot verify. If we cannot put our data (out) for examination, then I am worried about it.”

Mishra also pointed out that every governance organization at KU — such as the Faculty Senate and University Senate — always releases agendas in advance of meetings, takes and retains minutes of those meetings, and goes to great lengths to preserve any video of the meetings — more important now, he said, when many meetings take place over Zoom because of the pandemic.

It remains unclear why the PMAT isn’t following the same standards.