The Kansas State Board of Education, in cooperation with its attorney, appears to have violated the Kansas Open Meetings Act (KOMA) at the Oct. 13 meeting.
As part of adopting the agenda, Board President Cathy Hopkins stated the Board would recess to executive session at the end of the meeting for “attorney-client privilege.”
Board Member Debby Potter immediately asked for clarification on the specific subject.
Hopkins again stated “attorney-client privilege.”
Potter responded, “I thought we had to state the subject.”
Board attorney Mark Ferguson then simply stated the definition of attorney-client privilege.
Near the end of the meeting, Vice Chairman Danny Zeck moved to go into executive session, “to consult with an attorney which w0uld be deemed privileged in attorney-client relationship in order to protect the privilege and the board’s communication with its attorney on legal matters.”
However, Potter was correct that simply stating “attorney-client privilege” is insufficient under Kansas law and would likely violate the Kansas Open Meetings Act. Earlier this year, the Attorney General found the State Board of Education and the Kansas Department of Education guilty of multiple violations of the Kansas Open Records Act.
KOMA legal requirements for executive sessions
KOMA requirements for executive sessions are stated in K.S.A. 75-4319(a):
Upon formal motion made, seconded and carried, all public bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings. Any motion to recess for a closed or executive meeting shall include: (1) A statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume. The complete motion shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.al motion made, seconded and carried, all public bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings. Any motion to recess for a closed or executive meeting shall include: (1) A statement describing the subjects to be discussed during the closed or executive meeting; (2) the justification listed in subsection (b) for closing the meeting; and (3) the time and place at which the open meeting shall resume. The complete motion shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the public body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.
A 2018 Attorney General opinion confirms the KOMA requirement for a subject and a justification:
“Under the current law, “subjects” refers to an explanation of what is to be discussed, without revealing confidential information. “Justification” refers to one of the topics identified in K.S.A. 2017 Supp. 75-4319(b) such as, for example, personnel matters of nonelected personnel.”
