By Max Kautsch
Because Kansas law recognizes that “a representative government is dependent upon an informed electorate,” the meetings of local governments, such as county and city commissions, are “open to the public.”
But the electorate’s ability to be informed is curtailed when the government’s members recess to a temporary closed-door meeting, known as an “executive session,” a move the Kansas Open Meetings Act authorizes under certain circumstances.
There can be times when recessing to executive session serves the public interest. To help the public make sure, an explanation for the executive session is required to be recorded in the meeting minutes documenting the motion for recess.
But these motions for recess are not always satisfactory.
“We do occasionally get pushback from the public that wants more than what is in the motion,” said Douglas County Commissioner Karen Willey during a commission meeting from earlier this year. “That’s just something that we hear from folks.”
Willey’s constituents, and Kansans at large, have reason to be concerned. A majority of commissions for the five most populous counties in the state recently fell short of providing the information legally required before entering executive session.
Local governments, including all five surveyed for this article, tend to follow their obligation under the Kansas Open Meetings Act to list one of the 15 generic “justifications” for executive session. Commonly used justifications include discussing “personnel matters of nonelected personnel,” “the acquisition of real property,” and subjects “which would be deemed privileged in the attorney-client relationship.”
But even presuming the facts underlying the motion support the use of one of the “justifications,” the public gains little from such generic terminology. Simply allowing bodies to copy and paste one of them into the motion for recess had proven insufficient to inform the electorate about what was happening behind closed doors.
In recognition of this problem, KOMA was amended in 2017 to require that local governing bodies include the “complete motion” to recess in their minutes, which involves more than simply stating the “justification” for recess. As former Attorney General Derrick Schmidt’s office interpreted the amended KOMA in 2018, “the recording of the motion is not ‘complete’ if it merely summarizes the actual motion” and must reflect the “content of the motion as it was in fact made.”
Thus, as Schmidt’s office opined, a motion for recess to executive session “must be more than a generic or vague summary, or a list of the subject(s) to be discussed,” although “the statement describing what will be discussed” must not “be so detailed that it negates the usefulness of a closed or executive meeting.”
Attorney General Kris Kobach’s office followed suit in 2024, finding that the city commission serving Junction City violated KOMA when its motion for recess to discuss “industrial revenue bonds to inspire construction of a beef slaughterhouse” did “not adequately describe the subject to be discussed.”
But when county commissions for Johnson, Sedgwick, Shawnee, Wyandotte, and Douglas counties recently made motions to recess to executive session that relied on the “justification” of attorney-client privilege, only Johnson County’s motion also included a statement about the ensuing closed-door discussions that more than likely complies with current law.
When Johnson County’s commissioners made a motion on April 10 of this year to recess to executive session for “consultation with legal counsel which would be privileged in the attorney-client relationship,” the motion went on to explain that the discussion involved “potential litigation involving Johnson County Transit.”
“This provides clarity on the topic without compromising the purpose of the executive session and informs the public about the nature of the discussion, rather than merely referencing attorney-client privilege,” said Peggy Trent, chief counsel for Johnson County.
Arguing with that conclusion is difficult. Although the motion doesn’t reveal much detail, at least the public is aware that a lawsuit involving a particular department may be on the horizon, which is substantially more enlightening than having to guess why a local government had to consult with an attorney.
Shawnee County’s commissioners also offered an explanation beyond merely listing a “justification” when it recessed for attorney-client privileged discussions “regarding (emergency medical) services” on April 10. But as Shawnee County counselor Rich Eckert noted over the phone in response to a request for comment, the motion could have included more detail without compromising anyone’s privacy, such as by referencing the existing “contract with the county’s EMS services provider.”
While Eckert’s proposed revision would undoubtedly improve transparency as well as the odds of the county’s compliance with KOMA, just offering the explanation of “EMS services” did more to clue in the public than recent motions for recess recorded in the minutes for the commissioners of Sedgwick, Wyandotte, and Douglas counties.
On April 9, Sedgwick County’s commissioners entered executive session “for consultation with legal counsel for the County regarding matters deemed privileged in the attorney-client relationship in order to discuss legal claims against Sedgwick County.”
As Schmidt’s 2018 opinion points out, generic terminology, such as merely notifying the public that the body is consulting with an attorney, is insufficient to comply with the law. Moreover, the Sedgwick County’s motion doesn’t even clarify whether the referenced “claims” are prospective or active.
Still, according to county manager Tom Stolz, the motion “complies with the requirements of the Kansas Open Meetings Act because it contains the statutory elements of a valid motion for executive session.”
Stolz did not explain how the county’s position squares with Schmidt’s office expressly finding that motions “merely summariz(ing) the actual motion in a manner that addresses only” the required “statutory elements” are inadequate.
Also on April 9, the commissioners for the Unified Government of Wyandotte County recessed “to consult with our attorneys and to discuss confidential matters related to pending claims and litigation.” Casey Meyer, senior counsel for the unified government, defended the motion, writing in an email that “maintaining confidentiality” in executive session “speaks to the very privilege attorneys and clients rely on.” He argued that “the specificity of the description of the subjects to be discussed under that justification for recess are harder to achieve without violating the confidentiality and negating the need for the executive session.”
Eckert, the Shawnee County counselor, independently echoed Meyer’s position, arguing that attorney-client privilege should be considered a “first among equals” when it comes to “justifications” for recess to executive session under KOMA.
But like Eckert, Meyer also suggested his client could explore how it could be more transparent.
“In the future, (the unified government) will look for a way in which we may describe our subjects differently to provide more information without breaching that confidentiality,” Meyer wrote.
Lastly, on April 23, the only reasoning to support the Douglas County Commission’s motion for recess to executive session, beyond the “justification” of attorney-client privilege, was “to discuss pending litigation.”
Douglas County did not answer whether that motion did or did not comply with the law. But according to Karrey Britt, the county’s spokesperson, “Douglas County takes its obligations under the Kansas Open Meetings Act seriously.” Britt also noted that “motions to recess into executive session are prepared by legal counsel.” Britt then went on to quote portions of KOMA verbatim.
Douglas County may claim to take its KOMA obligations seriously, but this response suggests the concerns of Commissioner Willey’s constituents, as noted at the outset of this article, are unlikely to have been resolved.
Despite the hurdles local governments face to both keep the public informed about matters of public concern and maintain the confidentiality necessary to discuss such matters candidly with legal counsel, most of our state’s most populous counties could stand to offer more transparency about the rationale for discussing the public’s business behind closed doors. Informing the electorate requires nothing less.
