Kansas attorney general says that KU’s pandemic meetings are ‘akin to staff meetings,’ do not violate open meetings act

photo by: Chris Conde/Journal-World File Photo

Strong Hall on the University of Kansas campus is shown on Sept. 13, 2018.

Kansas’ Office of the Attorney General said Friday that the University of Kansas was not breaking state law by keeping the meetings of its pandemic advisory team private.

The nine-member team of medical professionals and KU leaders, known as PMAT, was established in June to help inform the university’s decisions related to the COVID-19 pandemic. In early September, the Journal-World reported that KU declined to answer whether the group’s weekly meetings were open to the public and that the university had not kept any minutes of the past meetings.

Later that month, KU student leader Wes Cudney filed a complaint with the Kansas attorney general alleging that the university was improperly keeping the public out of key meetings on how the campus will operate during the pandemic.

Under the Kansas Open Meetings Act, or KOMA, meetings involving public agencies that relate to the business of that agency must 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.

But according to Lisa Mendoza, the assistant attorney general and author of the letter to Cudney, PMAT is not a subordinate group subject to KOMA’s requirements, “but is more akin to a staff meeting” in which the chancellor seeks input from university employees and others.

“The KOMA ‘has been applied only to groups of persons who exercise authority as a ‘body’ or ‘agency’ and not to subordinate staff personnel who gather together but do not take collective action,’ she wrote. “It is the actual functions to be performed by the group, and not the make-up of the group, that determines whether any meetings must be open to the public.”

Max Kautsch, a Lawrence-based lawyer specializing in First Amendment law and government transparency, said that the attorney general’s decision was “hard to accept given the chancellor’s role as the head of the group and the AG’s finding that a PMAT member prepared a document called ‘Decision-Making Framework for Changes to State of Campus Operation.'”

The letter from the office of the attorney general addresses PMAT’s decision-making framework by noting that the document does not provide formal rules that must be followed to operate as a group.

“It simply emphasizes the importance of a data-driven approach to gathering information and making recommendations to the Chancellor, who is clearly the individual solely authorized to make decisions, notwithstanding the document’s suggestion that ‘most of our decisions will relate to specific interventions for targeted needs,'” Mendoza wrote.

Kautsch also took issue with KU’s chancellor, Douglas Girod, saying part of the weekly team call would involve “making a determination” as to whether KU needed to adjust its plan moving forward, including whether to close KU campuses and once again move to remote learning, as the Journal-World reported.

“Given that evidence, it strains credulity to believe that PMAT’s decisions were not effectively those of the university,” he wrote.

Cudney, the KU student who filed the complaint with the attorney general’s office, also expressed his disappointment with the government agency’s decision. He said it set a dangerous precedent for First Amendment rights in the state.

“It pretty much makes our Sunshine Laws irrelevant and unenforceable if the only thing you need to do is merely say it’s informal,” Cudney said of advisory groups.

In the letter, Mendoza wrote that the office of the attorney general consulted with KU’s legal counsel to learn more about PMAT’s creation and function. KU argued that the PMAT is not subject to KOMA because the group has no independent authority or power, makes no binding decisions and exists solely to offer advice to the chancellor.

Cudney took issue with multiple parts of the attorney general’s decision. He said the PMAT meetings could not be compared with an informal staff meeting because the PMAT has a committee chair.

On KU’s website about PMAT, Steve Stites, vice chancellor for clinical affairs at the KU Medical Center, is listed as “committee chair.”

“Calling Steve Stites, MD, the committee chair … shows that it is not an informal staff meeting as informal staff meetings are not committees with chairs that regularly meet every Wednesday,” Cudney wrote in a Tuesday press release from the student group KU Against Rising Tuition, of which Cudney is president.

KU spokesperson Erinn Barcomb-Peterson said that “the attorney general disagrees” with Cudney’s description of the group as more than an informal staff meeting.

Mendoza’s letter states that the PMAT is not formally constituted, has no formal charter, bylaws or regulations that it is required to follow. Though the group meets on a regular basis, Mendoza wrote that that is not surprising because of the nature of the pandemic.

Cudney also questioned how KU could say no minutes are kept at the PMAT meetings, when the group’s decision-making framework exists. The “Decision-Making Framework for Changes to State of Campus Operations” is available on KU’s PMAT website, protect.ku.edu/pmat.

“To create a well formatted PDF out of a group of people requires a method of orderly speaking, taking notes, and editing them together,” Cudney wrote in his press release.

Mendoza’s letter states that because the PMAT is not a subordinate group subject to KOMA’s requirements, the PMAT is not required to maintain meeting minutes.

Sanjay Mishra, president of KU’s University Senate, said in a Tuesday phone call with the Journal-World that while he wasn’t an expert on the law, he did understand community responsibility and rights. Mishra took issue with KU’s lack of transparency. Instead of hiding the PMAT meetings from the public eye, Mishra said KU — with its research capabilities — should be leading the state when it comes to setting up and sharing guidelines for reopening public organizations during the pandemic.

Kautsch, like Mishra, also called for transparency.

“(The) AG’s letter gives license to PMAT to continue to conduct its meetings in secret,” he wrote. “Despite the letter, KU should conduct PMAT meetings in the open going forward to prove to its constituents that it abides by the spirit, not just the letter, of open government laws.”

— Editor’s notes: This story has been clarified to reflect that the attorney general issues opinions rather than “rulings.”


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