AG Schmidt rules on recess meetings issue

BY SUZANNE PEREZ TOBIAS, Wichita Eagle

Government bodies can’t conduct private meetings that span several days – as the Wichita school board did last February – according to Kansas Attorney General Derek Schmidt.

In a formal opinion issued last week, Schmidt’s office clarified the term “recess” in the Kansas Open Meetings Act and said that a private session “may not stretch across multiple days.”

The new opinion affirms a complaint filed by The Eagle last year, alleging that the Wichita school board violated the open meetings law when it met in secret during an eight-day private session to interview candidates for superintendent

“It means that the school board can’t do what they did. … And it appears that the grounds for justifying their actions are no longer available.”

The opinion was issued at the request of Kansas Rep. Blaine Finch, R-Ottawa.

Finch, an attorney, did not cite the Wichita school board or any specific incident in his request. He asked for “a formal opinion on the meaning of the terms ‘recess’ and ‘adjourn’” in state law, and questioned “whether a public body or agent may recess an executive or closed meeting to another time and place.”

Wichita school district officials said they “do not agree” with the attorney general’s opinion but will follow its direction.

“In recognition of the fact that the Attorney General is the chief lawyer for the State of Kansas, (the district) will in the future abide with the new Kansas Attorney General Opinion,” spokeswoman Susan Arensman said in an e-mail.

Last February, during Wichita’s search for a new superintendent, school board members voted at the end of their regular meeting to recess into a private session for more than a week to discuss personnel matters.

At the time, school board president Sheril Logan told The Eagle the board planned to consider internal job candidates and wanted to protect the employees’ privacy.

Meeting in private was necessary, Logan said, “so their name isn’t splashed all over the news, with you guys trying to get to them to interview them before they’ve interviewed with the board.”

On Feb. 21, board members resumed their public meeting and voted to hire Alicia Thompson as superintendent. At a subsequent meeting on Feb. 27, they unanimously approved a three-year contract with Thompson.

The Eagle’s complaint alleged that the eight-day private session violated the open meetings law because board members should have adjourned the meeting and provided notice of when and where they planned to gather again.

The Sedgwick County District Attorney’s Office ruled last April in response to The Eagle’s complaint, that the school board did not knowingly violate the open meetings law when it met in secret to interview candidates.

School board members met at the office of Fleeson Gooing Coulson & Kitch in downtown Wichita on Feb. 18 – without notifying the public – and interviewed two candidates, according to information gleaned from that ruling,

Sedgwick County District Attorney Marc Bennett said Thursday that the attorney general’s opinion “adds clarity to a question that the (open meetings) statutes and case law had previously left unanswered.”

Previously, public bodies relied upon a 1996 Kansas Attorney General’s opinion that stated, “If there is no intent to subvert the KOMA, a meeting subject to that act may be adjourned, recessed or continued to another date, time or place,” Bennett said in an e-mail.

“What had been previously suggested but not clarified was whether ‘another date, time or place’ could span multiple days,” he said. “In the future, public bodies will have the benefit of the newly issued guidance from the Attorney General’s Office.”

Kautsch, the Eagle’s attorney, said the attorney general’s opinion is a victory for transparency in government.

“The attorney general’s office really does need to be applauded for coming through in this instance, for cleaning up the Sedgwick County DA office’s mess.”

Schmidt would not comment on the opinion, which was issued Dec. 28.

“The opinion speaks for itself. We have no further comment,” said Jennifer Montgomery, spokeswoman for Schmidt’s office, in an e-mail.

In Kansas, the attorney general’s office prepares legal opinions in response to requests from elected officials or government agencies. The opinions are not law, but courts generally give them some deference. They offer government entities some protection from lawsuits because they can argue that their actions were based on the advice of counsel.

In the Wichita school board’s case, Tom Powell, the board’s lawyer, cited the 1996 attorney general’s opinion, which he said allowed elected bodies authority to recess into a private session one day and return on a subsequent day.

“I think it’s pretty routine across the state,” Powell said at the time. “Particularly school districts do it like this.”

The Wichita board had not done it during previous superintendent searches, however. In 2009, before board members hired John Allison, they convened public meetings at North High School before recessing into closed-door sessions to interview candidates.

During at least three prior searches, names of superintendent candidates were released and community members could question the finalists.

Steve Coffman, editor of The Eagle and Kansas.com, said he was pleased with the opinion.

“This represents a win for open government and transparency in Kansas,” he said.

“This opinion supports what we knew all along: In no way was it legal or reasonable to believe that a public meeting could be recessed and reconvened multiple times over multiple days at locations that were secret.”

Coffman said he was grateful that Finch, the Kansas lawmaker, sought the opinion and that the attorney general’s office gave the matter thoughtful review.