SBR: AG clarifies executive session rules

In an opinion letter released January 8, the Kansas Attorney General concluded that a motion to recess into executive session may only utilize one of the justifications listed in K.S.A. 2017 Supp. 75-4319(b), but multiple subjects may be discussed if they all fall within the justification recited in the motion for executive session. See Kan. Atty. Gen. Op. No. 2018-1.

The opinion also reiterated that the motion must be recorded in the board’s minutes and is not complete unless it states the three statutory elements:

  1.  subject to be discussed;
  2. statutory justification for discussing the subject in executive, rather than open, session; and
  3. the length of time the executive session will last or the time at which the open meeting will resume.

The opinion letter clarified that “subjects” in the statute refers to “what is to be discussed, without revealing confidential information.” Because the revised statute uses the word “justification,” and not “justifications,” the Attorney General concluded that the legislature intended to permit only a single justification to be stated for recessing to executive session. Because the statute uses the term “subjects to be discussed,” the Attorney General concluded that the legislature intended public bodies to be able discuss more than one subject, as long as both subjects qualified for executive session treatment under the same justification.

Based upon a strict constructionist reading of the statute, the board could, for example, discuss employment issues of multiple separate employees in the same executive session under the “nonelected personnel” exception to the Kansas Open Meetings Act. It could not, however, justify the decision to talk about a personnel issue involving a single employee under both the nonelected personnel and attorney-client privilege justifications. While this limitation appears counterintuitive (because, after all, shouldn’t two justifications be better than one?), the attorney general concluded that such a limit was the legislature’s intent. If a matter has facets that require separate discussions under different justifications, it will be necessary to call an executive session supported by one justification, limit discussion to issues covered by that justification only, then return to open session and move for a new executive session under the other justification.

Board clerks are reminded to record the complete motion in the minutes of the meeting.

These articles are provided by the KASB Legal Services team and are not intended to be legal advice.

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