The Butler Community College (BCC) Board of Trustees — through their general counsel — refuses to answer questions regarding its legal authority to exclude a board member from an executive session called. But statements on the Kansas Attorney General’s office indicate that an elected official cannot be excluded.
Earlier this month, BCC Trustee Shelby Smith asked for an executive session regarding unelected personnel. Smith wished to discuss issues between Trustee Julie Winslow and BCC President Dr. Kim Krull without Krull present — which is allowable under the Kansas Open Meeting Act. This is not the first time Winslow raised concerns with Krall.
However, the board proceeded to vote 5-1, with Winslow abstaining, to exclude Winslow and Krull for the first 15 minutes and bring them both back in after 15 minutes.
Board member Shelby Smith, who voted against the motion, asked at the time if it was legal to exclude a member of the board by majority vote — as did Winslow.
BCC General Counsel Ray L. Connell of Connell and Connell of El Dorado responded that while he’d never seen it happen, based on “his 46 years of experience” and “common sense,” it was allowable.
Smith later asked BCC Board Chair Forrest Rhodes, himself an attorney, to respond — via email — what statutory authority existed to exclude an elected governing body member from an executive session.
Rhodes responded, “I’ll follow up. Did your counsel identify any legal support for his position that it was improper?”
Smith wrote back, “The lawyer I consulted said you (and Ray, I suppose) told the trustees they had the authority to do so, therefore it is incumbent upon you to provide the specific legal authority under which you said they were operating.”
Rhodes responded by doubling down.
“I don’t think it works that way,” he wrote. “You’re challenging that it was not authorized. I think the challenging person should be telling me why what we did was wrong, not requiring me to prove otherwise. I suspect the issue will be identifying a law that prohibits what occurred, not whether there’s some specific law that authorizes it. Nonetheless, I’ve asked Ray to review and follow up with us.”
Attorney General’s website indicates elected officials have a right to attend meetings
While the Kansas Open Meetings Act (KOMA) does not specifically say a member of a governing body (a “public body” in statute) may not be excluded, neither does it authorize such exclusion, and seems to assume that all members will be present.
Moreover, KOMA guidance from previous Attorney General Derek Schmidt, as well as the website for current AG Kris Kobach, specifically state that members of a public body have a right to be in the session.
“Only the members of the public body holding the executive session have a right to attend. The public body may include others if they believe their information is important,” the documents from Schmidt read.
Likewise, the AG’s Frequently Asked Questions webpage states: “Only members of the public body holding the discussion have a right to be in executive sessions. The public body may discretionarily include anyone they believe will aid them in that discussion.”
Nothing from the Attorney General indicates that an elected member of a governing body may be excluded from an executive session of that body. Moreover, none of the authorized uses for executive sessions indicate that an elected official may be excluded.
“Personnel matters relating to non-elected personnel; consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship; (3) matters relating to employer-employee negotiations whether or not in consultation with the representative or representatives of the body or agency; confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships; matters relating to actions adversely or favorably affecting a person as a student, patient or resident of a public institution, except that any such person shall have the right to a public hearing if requested by the person; preliminary discussions relating to the acquisition of real property; . . . And (13) matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures that protect specific systems, facilities, or equipment.”
Further, KOMA specifically does not allow the use of the “personnel exception” to privately discuss other board members or elected officials.
“The personnel exception is intended to allow discussion of employees,” the FAQ reads. “Officials, whether elected or appointed, are not ordinarily considered employees.”
Between Connell and Rhodes refusing to cite legal authority for their actions and Attorney General guidance, it certainly seems that the BCC Board of Trustees violated Trustee Winslow’s right to attend the special session.
The original version of this article inaccurately said Trustee Winslow called for the executive session.