The Crawford County Commission is refusing to answer questions about possible violations of the Kansas Open Meetings Act (KOMA) by the commission.
Between Sept. 13, 2022, and February 21, 2023, the commission recessed into executive session on at least 12 separate occasions to discuss the American Rescue Plan Act (ARPA) or the large childcare projects being funded by ARPA.
In each case, a legal expert says the statement in the minutes recessing the meetings did not meet state law.
“Under the Kansas Open Meetings Act, public bodies are required to make a written motion when they want to recess to executive session,” said Max Kautsch, a First Amendment attorney who also specializes in KOMA and the Kansas Open Records Act, or KORA. “That motion must contain a ‘statement describing the subjects to be discussed during the closed or executive meeting.’ Moreover, the Kansas Attorney General’s Office has interpreted that law to mean that ‘The statement 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 other words, Kautsch said, a governing body cannot simply repeat one of the “justifications” — such as attorney-client privilege — for recessing to executive session. In fact, the governing body must also “record in its minutes a short, plain statement about the purpose for the executive session in order to ensure an ‘informed electorate‘ in this state.
“The Crawford County Commission’s motions to recess often amount to no more than generic or vague summaries insufficient to comply with KOMA,” Kautsch said. “For example, the Commission recessed on February 21, 2023, ‘to discuss items that would be deemed privileged in the Attorney-Client Relationship to discuss ARPA funding.'”
“Even if the Commission’s privilege-based justification for recess were valid, there is no chance that the words ‘ARPA funding’ meet the standard contemplated by KOMA and the Attorney General to keep the public informed. Without a more meaningful statement about what subjects are to be discussed in executive session, the public has no way of knowing whether it should be on the alert for the Commission to take binding action. Recessing to executive session without offering more information as to why the recess is occurring defeats the legislative intent to have an informed electorate here in Kansas.”
Even when the commission did give slightly more information, such as recessing to discuss the ARPA large child care funding auditing contract on January 6, 2023, it may not have been enough.
“It is an open question whether those words are enough to give the public a meaningful opportunity to investigate the consequences of the body taking action on an issue as important as community child care,” Kautsch said. “The Commission should review its recess practices and make sure that going forward, it provides information about its recesses to executive session as required by law.”
The Sentinel reached out to Crawford County Counsel Jim Emerson, asking him to explain why the statements in the minutes, in his opinion, met the requirements of KOMA and what exactly about ARPA funding or large childcare projects was so sensitive as to be privileged and require an executive session.
As of publication, the Sentinel has received no response.
