When can a group subject to the KOMA close its meetings?
The body may go into an executive session (after convening an open meeting), in order to privately discuss a matter, if (a) the discussion is on a topic listed in K.S.A. 75-4319 and (b) the correct procedure is followed for going into executive session.
Does a public body have a duty to close certain discussions?
Not under the KOMA. The KOMA allows executives session discussions; it does not require them.
Does the KOMA require members of a public body to refrain from publicly revealing matters that were discussed while in executive sessions?
No. Some other laws, or considerations such as fiduciary duty, personal privacy rights, or contracts, may require or influence such confidentiality. But the KOMA itself does not require that the topics listed in K.S.A. 75-4319 always be kept private.
Who can be present during an executive session discussion?
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.
Can a member of the general public be allowed into executive session discussions in order to simply listen and make sure the KOMA is not being violated?
No. If the public body allows one "general listener" to attend, the discussion must be open to the rest of the general public.
Can a group subject to the KOMA take secret binding action while in executive session?
No. All binding action must be publicly taken. Executive sessions may only be used to discuss matters. However, a public body can reach a consensus while in executive session.
How does a public body properly go into an executive session?
First the public body must be in an open session, before going into an executive session.
Then, a motion must be made, and seconded.
The motion must contain statement of Justification for closure; Subject(s) to be discussed; and (3) Time and place open meeting will resume.
Example: "Madam Chairman, I move we recess into executive session to discuss disciplinary action against a student in order to protect the privacy of the parties involved. We will reconvene the open meeting in the conference room at 8:30 p.m."
When making a motion to go into an executive session, are justification and subject the same thing?
No. Motions for executive session should contain subject and justification statement, which are not the same thing. The subject is one of the topics listed in K.S.A. 75-4319(b). The justification is an explanation of what is to be discussed (without revealing confidential information.)
Must motions to go into executive session be recorded in the minutes of meetings?
Yes. All executive session motions must be recorded in minutes.
What topics can be discussed in an executive session?
Those topics listed in K.S.A. 75-4319(b) can be privately discussed by a public body subject to the KOMA. A copy of that statute is available on-line at www.kslegislature.org There are currently 14 topics listed. These include: 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.
(a) Personnel matters
Can a public body privately discuss an individual who works for the body?
Yes. If that person is an employee of that body (or an applicant for employment) K.S.A. 75-4319(b) allows executive session discussions about individuals who are employed by the body holding that executive session discussion.
Can an employee who is being discussed by a public body require that they allow him or her into the executive session discussion, or require that the discussion be held openly?
Not under the KOMA. The public body gets to decide whether to close a discussion on a public employee, or not, and who can be present in executive session discussions.
Can a public body subject to the KOMA use an executive session to discuss independent contractors who are doing work for the public body?
No, not under the "personnel" exception; an independent contractor is not an employee.
Can a public body subject to the KOMA use executive sessions to discuss general employee related topics?
No. The personnel exception in K.S.A. 75-4319(b) is intended to protect the privacy of individuals. Thus, if no individuals are being discussed, that exception to openness does not apply.
Can a public body subject to the KOMA use executive sessions to discuss applicants for employment?
Yes. The KOMA specifically allows such discussions in order to protect the privacy of a specific individual or individuals who have applied for employment.
Does the KOMA allow use of the "personnel exception" to privately discuss other board members or elected officials?
No. The personnel exception is intended to allow discussion of employees. Officials, whether elected or appointed, are not ordinarily considered employees.
Does the KOMA allow use of the "personnel exception" to privately discuss employees of some other public body or entity?
No. The KOMA allows a public body to privately discuss their own employees, not the employees of some other employer.
(b) Consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship.
What constitutes a privileged relationship?
1. The body's attorney (or attorneys) must be present;
2. The communication must be privileged, and
3. No other third parties may be present.
Can a public body discuss a legal matter under this exception, even if their attorney is not with them?
No. This exception in the KOMA cannot be used to discuss legal matters, such as a letter received from attorney, if the attorney is not present. The attorney for the body must be present somehow (by telephone is allowed) and participating in the discussion (not enough to simply have the attorney present).
Does the discussion have to be on litigation or threatened litigation?
No. The KOMA does not require that the legal matter involve litigation.
Can someone who is not a member of the client organization or the attorney(s) for that entity be included in an executive session called under this exception?
No. The presence of a third-party who is not part of the client organization or an attorney for that body will destroy the privileged nature of the communication.
What or who determines if the topic being discussed is privileged?
Confidentiality can attach to any communication between an attorney and a client wherein legal advice or assistance is sought or given, or information imparted in order to facilitate such advice or assistance. With very limited ethical exceptions, the client alone can decide whether to waive such confidentiality.