Printable Format75-4319. Closed or executive meetings; conditions; authorized subjects for discussion; binding action prohibited; certain documents identified in meetings not subject to disclosure. (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.
(b) Justifications for recess to a closed or executive meeting may only include the following, the need:
(1) To discuss personnel matters of nonelected personnel;
(2) for consultation with an attorney for the public body or agency which would be deemed privileged in the attorney-client relationship;
(3) to discuss employer-employee negotiations whether or not in consultation with the representative or representatives of the public body or agency;
(4) to discuss data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships;
(5) to discuss 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) for the preliminary discussion of the acquisition of real property;
(7) to discuss matters relating to parimutuel racing permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 74-8804, and amendments thereto;
(8) to discuss matters relating to the care of children permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 38-2212(d)(1) or 38-2213(e), and amendments thereto;
(9) to discuss matters relating to the investigation of child deaths permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 22a-243(j), and amendments thereto;
(10) to discuss matters relating to patients and providers permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 39-7,119(g), and amendments thereto;
(11) to discuss matters required to be discussed in a closed or executive meeting pursuant to a tribal-state gaming compact;
(12) to discuss 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 public body or 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;
(13) to discuss matters relating to maternity centers and child care facilities permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 65-525(d), and amendments thereto;
(14) to discuss matters relating to the office of inspector general permitted to be discussed in a closed or executive meeting pursuant to K.S.A. 75-7427, and amendments thereto; and
(15) for the governor's domestic violence fatality review board to conduct case reviews.
(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.
(d) Any confidential records or information relating to security measures provided or received under the provisions of subsection (b)(12), shall not be subject to subpoena, discovery or other demand in any administrative, criminal or civil action.
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; L. 2005, ch. 126, § 4; L. 2007, ch. 177, § 16; L. 2009, ch. 132, § 14; L. 2012, ch. 16, § 33; L. 2015, ch. 68, § 16; L. 2017, ch. 73, § 4; July 1.
Revisor's Note:
Section was amended twice in the 1992 session, see also 75-4319a.
Section was amended twice in the 2004 session, see also 75-4319b.
Law Review and Bar Journal References:
"The Kansas Open Meeting Act: Sunshine on the Sunflower State?" Deanell R. Tacha, 25 K.L.R. 169, 192, 193, 196, 199 (1977).
"Survey of Kansas Law: Municipal Corporations," Richard H. Seaton, 27 K.L.R. 269, 273 (1979).
"Open Meetings Profile: The Prosecutor's View," Bradley J. Smoot and Louis M. Clothier, 20 W.L.J. 241 (1981).
"Agency Access and Disclosure: Kansas and Federal," David L. Ryan, 56 J.K.B.A. No. 6, 8, 10 (1987).
"Kansas Sunshine Law; How Bright Does it Shine Now? The Kansas Open Meetings Act," Theresa Marcel Nuckolls, 72 J.K.B.A. No. 6, 34 (2003).
Attorney General's Opinions:
KOMA; luncheon meetings. 80-148.
Violations of KOMA as grounds for forfeiture of public office. 80-168.
Application of KOMA to work sessions; minutes. 80-197.
Committees and subordinate groups subject to KOMA. 80-201.
KOMA; oral notice; closed sessions. 81-22.
KOMA; county hospital board of trustees; closed executive sessions. 81-39.
KOMA; meetings with special interest groups. 81-264.
KOMA; township board; conduct of meetings. 81-288.
KOMA; watershed districts; executive session with legal counsel permissible despite K.S.A. 24-1212. 82-130.
KOMA; persons who may attend executive sessions. 82-176.
KOMA; executive recess; attorney-client privilege. 82-247.
KOMA; Supreme Court nominating commission. 82-254.
Hazardous waste disposal facility approval board is subject to KOMA. 82-266.
KOMA; procedures for bodies exercising quasi-judicial functions. 84-50.
KOMA; joint meetings between governing bodies subject to act. 84-103.
Bodies subject to open public meetings; not-for-profit corporations. 85-49.
Language of K.S.A. 24-1212 providing that no executive sessions be held is repealed by implication by KOMA. 85-161.
Executive meetings; subjects to be discussed. 86-33.
Meetings of public agencies open to public. 86-48.
Attendance at executive sessions. 86-143.
Executive sessions; consultation with an attorney. 86-162.
Executive session; personnel matters. 87-10.
Discussion of acquisition of real property may be in a closed meeting; discussion of sale of real property must be in open meeting. 87-91.
Public officers and employees; executive sessions; personnel matters; open public meetings; independent contractors. 87-169.
County and county officers; open public meetings; attendance at executive sessions. 87-170.
Governing bodies; subordinate commissions; open public meetings; personnel matters. 88-25.
KOMA; executive sessions; confidential data relating to financial affairs or trade secrets. 88-148.
KOMA; discussions regarding peer review and risk management reports; confidentiality and open meetings requirements. 89-42.
Executive sessions; acquisition of property. 89-92.
Open meetings act; executive sessions; applicability; persons entitled to attend; actions taken. 91-31.
Open public meetings; contents of motion for executive session. 91-78.
Open public meetings; executive sessions; subjects for discussion; persons in attendance; attorney-client privileged communications. 92-56.
Public records; application of open records act; effect of review of record in executive session. 95-119.
Notice of adjourned, recessed or continued meetings subject to open meetings act. 96-14.
Discussion of personnel matters in closed sessions; applicants or prospective employees. 96-61.
Application of open meetings act and administrative procedure act to proceedings for determination of benefits of KPERS member before hearing officer and board of trustees. 97-40.
Deliberations involving exercise of quasi-judicial function exempt from open meetings act. 97-41.
Meetings; serial meetings or communications; calling trees. 98-49.
Extension Councils are subject to Kansas Open Meetings Act. 2000-63.
Release of information from nongovernmental sources by Legislative Post Audit. 2001-18.
Discussions concerning candidate for municipal court judge should take place openly and not in executive session. 2002-28.
Public body subject to Kansas Open Meetings Act may conduct meetings by telephone; general public must be able to listen. 2005-3.
General discussion of quality of care and staffing at county hospital not allowed in executive session; exception concerning individuals. 2008-22.
Evaluation of an employee may be discussed during the executive session but the topic of policy or directive adopted by a governing body must be within the context of such employee's performance. 2009-21.
Public entity subject to the Kansas open meetings act may conduct meetings outside of Kansas or by teleconference or videoconference if it complies with all of the requirements of the Kansas open meetings act. 2011-23.
Motion to recess into a closed or executive meeting may only utilize one justification and the statement must be more than a generic or vague summary of the subjects to be discussed. 2018-1.
CASE ANNOTATIONS
1. Act authorizes discussion of confidential financial affairs or trade secrets at closed or executive meetings. Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 6 Kan. App. 2d 444, 459, 629 P.2d 1174 (1981).
2. Redress for technical violations of KOMA not mandatory. Stevens v. City of Hutchinson, 11 Kan. App. 2d 290, 291, 726 P.2d 279 (1986).
3. If segregation of exempt and nonexempt topics make coherent discussion impossible it may be reasonable to close entire meeting. State v. U.S.D. No. 305, 13 Kan. App. 2d 117, 119, 120, 764 P.2d 459 (1988).
4. Act not violated where consensus only reached in executive session; advance preparation of resolution reflecting expected action not due process violation. O'Hair v. U.S.D. No. 300, 15 Kan. App. 2d 52, 56, 66, 805 P.2d 40 (1991).
5. Terminated teacher's due process rights violated by board of education's limiting questioning regarding executive session. Walker v. U.S.D. No. 499, 21 Kan. App. 2d 341, 344, 900 P.2d 850 (1995).
6. Matters discussed in closed meeting session under KORA are not privileged from discovery in federal claims absent specific recognized privilege. Hinsdale v. City of Liberal, Kansas, 961 F. Supp. 1490, 1494 (1997).
7. Closed executive session statements of city commission not subject to attorney client privilege were discoverable. Hinsdale v. City of Liberal, Kan., 981 F. Supp. 1378, 1379 (1997).