Kansas Liberty: 28 October 2009
Six says “open meetings” should be just that. JoCo DA says there are exceptions.
Despite AG’s findings, Howe pledges to keep doors closed to some public meetings
Attorney General Steve Six, responding to an inquiry from state lawmakers about the scope of the Kansas Open Meeting Act, determined that taxes and budget issues cannot be discussed during meetings that are closed to the public, except in cases in which it is “burdensome and impractical, if not impossible” to do so.
Six’s opinion, dated Sept. 23, found that “within an executive session, the governing body or agency…should remain vigilant and engage in self-policing to assure compliance with KOMA.”
Ben Hodge, a former state representative, and treasurer of the Kansans for State and Local Government Reform political action committee, prompted the legislators to ask for the attorney general’s opinion after learning that the president of Johnson County Community College, Terry Callaway, discussed a 64-item list of possible budget cuts during a closed meeting. Hodge is a former Johnson County Community College trustee.
“Some local governments in Kansas think that it’s acceptable to talk during closed-to-the-public meetings about how they spend your tax dollars,” Hodge said in a news release. “But I’ve taken the issue to Democratic Attorney General Stephen Six, and AG Six has agreed that local governments should not intentionally discuss budget-related topics during closed meetings.”
Hodge, along with the Kansas Press Association, believes that Six’s opinion differs from Johnson County District Attorney Steve Howe’s interpretation of how the Kansas Open Meeting Act should apply in the Johnson County Community College situation.
Howe determined that the closed meeting did not violate the act, and that it is permissible to discuss budget matters during a closed session if an employee evaluation is also discussed.
Hodge said that Callaway discussed the budget cuts during his performance evaluation, but that Callaway had determined before the meeting that the primary focus of the executive session would be to discuss budget issues thus creating a violation of the act.
The Kansas Press Association argued that Howe’s opinion on the Kansas Open Meeting Act was in conflict with Six’s and requested that Howe review his opinion and once again investigate whether the act was violated at the Johnson County Community College meeting.
“Clearly it was not ‘burdensome’ or ‘impossible’ for Callaway to wait until an open meeting to share his 64-item list of possible budget cuts,” the Kansas Press Association said in its letter to Howe. “He in fact appears to have deliberately used the closed session to discuss policy matters that are not allowed under KOMA.”
Howe said his office will issue a written response to the Kansas Press Association’s questions within the next week, but said that he did not plan to amend his opinion in any way.
“It is our opinion that the AG’s opinion does not conflict with our findings,” Howe told Kansas Liberty. Howe said the response will outline, in detail, his reasoning behind reaching that conclusion.
Although Howe’s opinion was a direct response to the Johnson County Community College situation, Six’s opinion was a response to a hypothetical situation.
Reps. Anthony Brown, R-Eudora; Lana Gordon, R-Topeka; Owen Donohoe, R-Shawnee; and Sen. Chris Steineger, D-Kansas City requested Six’s clarification of the Kansas Open Meeting Act.
Donohoe said he believed that Johnson County Community College violated the act when budget cuts were discussed in executive session. Donohoe also agreed with Hodge and the Kansas Press Association that Howe’s interpretation of Kansas Open Meeting Act differed from Six’s.
“Obviously we have a difference of opinion between what the two individuals have stated,” Donohoe told Kansas Liberty. “It is important we get some clarification.”
The Kansas Open Meetings Act requires that at any meetings that fall under the act’s definition must be open to the public. According to the act, these include any “.. boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or part by public funds…”
There are some exceptions to Kansas Open Meeting Act guidelines that allow an agency to conduct a closed meeting, including when the group is discussing matters of personnel. However, previous rulings have determined that these exceptions must be interpreted as narrowly as possible.
Donohoe said he was unsure whether executive meetings in the state routinely include discussion of topics that are not appropriate to discuss without the public’s knowledge but said that the attorney general’s opinion should bring more attention to the matter, and hopefully work to discourage any unlawful behavior that may be occurring.
“The better we clarify it, the more people will understand what is acceptable,” he said.
– Holly Smith