Executive Session "Do's and Don'ts"
At the last Commission meeting Mayor Billionis requested that the Commission go into Executive Session to discuss non-elected personnel. Before going into Executive Session the regular meeting was adjourned by the Mayor. This is a violation of the Kansas Open Meetings Act.
"Upon formal motion made, seconded and carried, all bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings."
Commissioner Wood has also told me that not disclosing the names of the members of the Police Chief Advisory Committee "falls under the Commission's Executive Session privilege." This too is also a violation of KOMA. (Committee appointments are not considered subject matter for Executive Sessions as well as "no binding action" shall take place in Executive Session, Committee Appointments are binding action.)
The Kansas Attorney General's Office has previously issued an opinion concerning committee appointments and executive sessions...
"The Open Meetings Act is to be broadly construed to promote openness. Meetings of a body covered by the KOMA must be open to the public unless there is specific statutory authority otherwise. Of the statutory exceptions allowing for executive sessions, only one mentions personnel. It allows for executive sessions for discussion of "personnel matters of non-elected personnel." By its express terms, this exception does not apply and, therefore, neither Extension Councils, nor any other group covered by the KOMA, may go into executive session to discuss elected personnel. This is in accord with a prior opinion which concluded that the personnel exception could not be used to discuss appointments to boards because it applies only to employees. (AG Opinion 1987-10)
In summary, Extension Councils are subject to the KOMA. No body subject to the KOMA may go into executive session to discuss "elected personnel." (-former Attorney General Carla Stovall.)
Considering Commissioner Wood's interest in conducting meetings with rules and regulations, the KOMA statutes must be followed, not just a version of "Roberts Rules of Order" provided by the Kansas League of Municipalities, or our own Commission's "Home Rule" version. I happened to notice that the new rules were implemented starting with the October 18 meeting, yet the minutes kept by the city never reflect when this was approved by the Commission. I know the Commission held a work session to discuss the new rules prior to the October 18 meeting, however no minutes are kept at such work sessions, and we have been told by the commission that "no binding action" takes place at those meetings either. I actually think that the new rules are a good compromise and very reasonable. I've generally not had any questions that take any longer than 3 minutes. (And it certainly doesn't take 3 minutes for them to ignore them.) It usually goes like this, "Thank-You, are there any more comments from citizens?"
In reality the City Manager's contract and performance review should be held in an open meeting as he is considered a Public Official, not just personnel.
"The creation of the person's position by either a state constitution or statutes, as well as the prescription of his or her duties and powers by statute, rather than by contract. A requirement of law that such person be elected or appointed. The designation or title given the person by law. . . . Public officers are generally appointed to serve for a specified time, the duration or term of employment being fixed by statute. They frequently take or are required to take an oath of office and are vested with supervisory and discretionary authority, which entails exercising some portion of sovereign power to carry out their duties. Importance, dignity, and independence of office have been adopted by some courts as relevant factors in determination of public officer status; . . . whether the public servant is under the direct control and supervision of an employer; whether he or she makes important policy decisions; whether he or she has to meet certain qualifications prescribed by law. If the office occupied involves a large degree of independence in which the individual is not under the direct supervision and control of an employer, then the individual is a public officer."
Here is the statute concerning the rules for Executive Sessions...
75-4319
Chapter 75.--STATE DEPARTMENTS; PUBLIC OFFICERS AND EMPLOYEES
Article 43.--PUBLIC OFFICERS AND EMPLOYEES
75-4319. Closed or executive meetings; conditions; authorized subjects for discussion; binding action prohibited. [See Revisor's Note] (a) Upon formal motion made, seconded and carried, all 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 a statement of (1) the justification for closing the meeting, (2) the subjects to be discussed during the closed or executive meeting and (3) the time and place at which the open meeting shall resume. Such motion, including the required statement, shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.
(b) No subjects shall be discussed at any closed or executive meeting, except the following:
(1) Personnel matters of nonelected personnel;
(2) 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;
(4) confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships;
(5) 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;
(6) preliminary discussions relating to the acquisition of real property;
(7) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 74-8804 and amendments thereto;
(8) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (e) of K.S.A. 38-1507 and amendments thereto or subsection (f) of K.S.A. 38-1508 and amendments thereto;
(9) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (j) of K.S.A. 22a-243 and amendments thereto;
(10) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (e) of K.S.A. 44-596 and amendments thereto;
(11) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (g) of K.S.A. 39-7,119 and amendments thereto;
(12) matters required to be discussed in a closed or executive meeting pursuant to a tribal-state gaming compact;
(13) matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. For purposes of this paragraph, security means measures that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping. Security measures include, but are not limited to, intelligence information, tactical plans, resource deployment and vulnerability assessments; and
(14) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (f) of K.S.A. 65-525, and amendments thereto.
(c) No binding action shall be taken during closed or executive recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.
History: L. 1972, ch. 319, § 3; L. 1977, ch. 301, § 3; L. 1981, ch. 344, § 1; L. 1988, ch. 315, § 4; L. 1992, ch. 318, § 9; L. 1993, ch. 286, § 75; L. 1994, ch. 254, § 3; L. 1996, ch. 256, § 23; L. 1999, ch. 96, § 2; L. 2001, ch. 190, § 2; L. 2004, ch. 177, § 2; July 1. e Mayor.
I'm surprised that the City Attorney isn't advising the Commission on these violations but maybe it just falls under "we've done it this way for twenty some years and I'm comfortable with it."
"Upon formal motion made, seconded and carried, all bodies and agencies subject to the open meetings act may recess, but not adjourn, open meetings for closed or executive meetings."
Commissioner Wood has also told me that not disclosing the names of the members of the Police Chief Advisory Committee "falls under the Commission's Executive Session privilege." This too is also a violation of KOMA. (Committee appointments are not considered subject matter for Executive Sessions as well as "no binding action" shall take place in Executive Session, Committee Appointments are binding action.)
The Kansas Attorney General's Office has previously issued an opinion concerning committee appointments and executive sessions...
"The Open Meetings Act is to be broadly construed to promote openness. Meetings of a body covered by the KOMA must be open to the public unless there is specific statutory authority otherwise. Of the statutory exceptions allowing for executive sessions, only one mentions personnel. It allows for executive sessions for discussion of "personnel matters of non-elected personnel." By its express terms, this exception does not apply and, therefore, neither Extension Councils, nor any other group covered by the KOMA, may go into executive session to discuss elected personnel. This is in accord with a prior opinion which concluded that the personnel exception could not be used to discuss appointments to boards because it applies only to employees. (AG Opinion 1987-10)
In summary, Extension Councils are subject to the KOMA. No body subject to the KOMA may go into executive session to discuss "elected personnel." (-former Attorney General Carla Stovall.)
Considering Commissioner Wood's interest in conducting meetings with rules and regulations, the KOMA statutes must be followed, not just a version of "Roberts Rules of Order" provided by the Kansas League of Municipalities, or our own Commission's "Home Rule" version. I happened to notice that the new rules were implemented starting with the October 18 meeting, yet the minutes kept by the city never reflect when this was approved by the Commission. I know the Commission held a work session to discuss the new rules prior to the October 18 meeting, however no minutes are kept at such work sessions, and we have been told by the commission that "no binding action" takes place at those meetings either. I actually think that the new rules are a good compromise and very reasonable. I've generally not had any questions that take any longer than 3 minutes. (And it certainly doesn't take 3 minutes for them to ignore them.) It usually goes like this, "Thank-You, are there any more comments from citizens?"
In reality the City Manager's contract and performance review should be held in an open meeting as he is considered a Public Official, not just personnel.
"The creation of the person's position by either a state constitution or statutes, as well as the prescription of his or her duties and powers by statute, rather than by contract. A requirement of law that such person be elected or appointed. The designation or title given the person by law. . . . Public officers are generally appointed to serve for a specified time, the duration or term of employment being fixed by statute. They frequently take or are required to take an oath of office and are vested with supervisory and discretionary authority, which entails exercising some portion of sovereign power to carry out their duties. Importance, dignity, and independence of office have been adopted by some courts as relevant factors in determination of public officer status; . . . whether the public servant is under the direct control and supervision of an employer; whether he or she makes important policy decisions; whether he or she has to meet certain qualifications prescribed by law. If the office occupied involves a large degree of independence in which the individual is not under the direct supervision and control of an employer, then the individual is a public officer."
Here is the statute concerning the rules for Executive Sessions...
75-4319
Chapter 75.--STATE DEPARTMENTS; PUBLIC OFFICERS AND EMPLOYEES
Article 43.--PUBLIC OFFICERS AND EMPLOYEES
75-4319. Closed or executive meetings; conditions; authorized subjects for discussion; binding action prohibited. [See Revisor's Note] (a) Upon formal motion made, seconded and carried, all 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 a statement of (1) the justification for closing the meeting, (2) the subjects to be discussed during the closed or executive meeting and (3) the time and place at which the open meeting shall resume. Such motion, including the required statement, shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.
(b) No subjects shall be discussed at any closed or executive meeting, except the following:
(1) Personnel matters of nonelected personnel;
(2) 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;
(4) confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships;
(5) 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;
(6) preliminary discussions relating to the acquisition of real property;
(7) matters permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 74-8804 and amendments thereto;
(8) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (e) of K.S.A. 38-1507 and amendments thereto or subsection (f) of K.S.A. 38-1508 and amendments thereto;
(9) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (j) of K.S.A. 22a-243 and amendments thereto;
(10) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (e) of K.S.A. 44-596 and amendments thereto;
(11) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (g) of K.S.A. 39-7,119 and amendments thereto;
(12) matters required to be discussed in a closed or executive meeting pursuant to a tribal-state gaming compact;
(13) matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures, that protect: (A) Systems, facilities or equipment used in the production, transmission or distribution of energy, water or communications services; (B) transportation and sewer or wastewater treatment systems, facilities or equipment; (C) a public body or agency, public building or facility or the information system of a public body or agency; or (D) private property or persons, if the matter is submitted to the agency for purposes of this paragraph. For purposes of this paragraph, security means measures that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping. Security measures include, but are not limited to, intelligence information, tactical plans, resource deployment and vulnerability assessments; and
(14) matters permitted to be discussed in a closed or executive meeting pursuant to subsection (f) of K.S.A. 65-525, and amendments thereto.
(c) No binding action shall be taken during closed or executive recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.
History: L. 1972, ch. 319, § 3; L. 1977, ch. 301, § 3; L. 1981, ch. 344, § 1; L. 1988, ch. 315, § 4; L. 1992, ch. 318, § 9; L. 1993, ch. 286, § 75; L. 1994, ch. 254, § 3; L. 1996, ch. 256, § 23; L. 1999, ch. 96, § 2; L. 2001, ch. 190, § 2; L. 2004, ch. 177, § 2; July 1. e Mayor.
I'm surprised that the City Attorney isn't advising the Commission on these violations but maybe it just falls under "we've done it this way for twenty some years and I'm comfortable with it."
posted by Thom Prue @ 5:55 PM
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