72 J. Kan. Bar Assn. 6, 34-45 (2003). Kansas Sunshine Law: How Bright Does It Shine Now? - Part 2.

AuthorBy Theresa Marcel Nuckolls

Kansas Bar Journals

Volume 72.

72 J. Kan. Bar Assn. 6, 34-45 (2003).

Kansas Sunshine Law: How Bright Does It Shine Now? - Part 2

Kansas Bar Journal72 J. Kan. Bar Assn. 6, 34-45 (2003)Kansas Sunshine Law: How Bright Does It Shine Now? - Part 2The Kansas Open Meetings ActBy Theresa Marcel NuckollsI. Introduction

The Kansas Open Meetings Act (KOMA)[1] and it companion, the Kansas Open Records Act (KORA),[2] were designed to shed some sunshine upon the workings of the government. In fact, the KOMA has been referred to as the "cornerstone of public access to state and local government in Kansas"[3] and the Kansas Supreme Court has declared that "[d]emocracy is threatened when public decisions are not made in public."[4] These statements evidence the importance of the KOMA to our system of government.

  1. Purpose and Construction of the KOMA

    The purpose of the Kansas Open Meetings Act is to promote an informed electorate.[5] The Act is to be interpreted liberally, and its exceptions narrowly construed, to carry out the purpose of the law.[6] "Elected officials have no constitutional right to conduct government affairs behind closed doors.[7] Their duty is to inform the electorate, not hide from it. The KOMA places no constraints on purely private discussions by public officials. It regulates only the conduct of public business."[8] Access to information about the activities and decision-making processes of government allows voters the opportunity to make more intelligent decisions, to have more trust in government, and to curtail governmental corruption.[9] Statutory exceptions to the policy of open government allow closure of meetings based upon a reluctance to prematurely disclose information that would disadvantage the government, disclose personal information about a private person, reduce efficiency, negatively impact the free exchange of ideas, or discourage independent judgment.[10] However, the statutes and case law support the general rule that, absent a statutory exception, meetings of public bodies subject to the KOMA should be open.

  2. Bodies Subject to the KOMA

    The first, and sometimes most difficult, question in any KOMA situation is whether a specific group is subject to the Act. Under K.S.A. 75-4318, there are two concurrent requirements for determining if a body is subject to the KOMA: The KOMA applies to (1) all legislative and administrative bodies, state agencies, and political and taxing subdivisions (2) which receive or expend and are supported in whole or in part by public funds. By its very terms, the KOMA applies to state agency boards, unless otherwise provided by statute. Likewise, the KOMA applies to the more obvious political and taxing subdivisions of the state,[11] including cities, counties, townships,[12] school districts, community colleges,[13] watershed districts,[14] rural water districts,[15] drainage districts,[16] extension councils created under K.S.A. 2-611,[17] and local historic preservation committees administering K.S.A. 75-2724.[18]

    It is often more difficult to determine if the KOMA applies to entities that are created by, or subordinate to, a more familiar unit or branch of the government. Such subordinate groups may include boards, commissions, authorities, councils, committees, subcommittees, advisory groups, or task forces. Determining whether the KOMA applies to a specific group requires focusing upon the nature of the group, not its designation or name.[19] Subordinate entities are covered by the KOMA if (1) the funding test is met by the group or the parent body of the group,[20] and (2) they are appointed by the parent body (that is subject to the KOMA in its own right) to weigh options, discuss alternatives, present recommendations or a plan of action. A good test for determining if the KOMA applies to a subordinate entity is whether those on the subordinate body were appointed by some official action of a governmental entity.[21] The KOMA also applies if a majority of a quorum of any governing body, which in its own right is subject to the KOMA, serves on the subordinate body.[22] Examples of subordinate entities that have been found subject to the KOMA include school district advisory boards;[23] fire district advisory boards,[24] commissions formed by the mayor of a city if subordinate to the governing body,[25] committees appointed by a city to hear employee grievances,[26] drug utilization services board created by the department of social and rehabilitation services,[27] parental boards under recreation commissions,[28] and house and senate conference committees.[29]

    Government corporations or government-controlled corporations may be subject to the KOMA if they meet all three of the definition tests: (1) The corporation receives or expends public funds, (2) the corporation is subject to control of governmental unit(s) and (3) the corporation acts as a governmental agency in providing services or possesses independent authority to make governmental decisions. All three must be present. It is not enough that the entity receives a grant or other funds from the state or another governmental entity. Rather, the amount and degree of governmental control or authority over the entity in question is often the most important factor.[30] The Kansas Attorney General has issued several opinions concerning nonprofit corporations and the KOMA. According to these opinions, nonprofit corporations subject to the KOMA include area agencies on aging,[31] the Economic Opportunity Foundation, Inc.,[32] McPherson Co. Diversified Services, Inc.,[33] Three Rivers, Inc.,[34] Cowley County Diversified Services,[35] and HELP, Inc.[36] Those nonprofit corporations found not subject to KOMA include private nursing homes,[37] the University of Kansas and Wichita State University Endowment Associations,[38] Planned Parenthood,[39] the Hutchinson Cosmosphere,[40] Electric Cooperative,[41] a corporation used to run a public hospital,[42] the Parsons Chamber of Commerce,[43] K-10 Corridor Development, Inc.,[44] the Koch Crime Commission,[45] Kansas Venture Capital, Inc.,[46] Mid-America Commercialization, Inc.,[47] Consensus Estimating Group (made up of staff from various state agencies),[48] the Prairie Village Economic Development Commission,[49] and the Hesston Area Senior Center.[50] In every case where KOMA application to a corporation is questioned, the nature of the funding, the entity creating the group, and the powers and duties of the corporation in question must be examined on a case-by-case basis.[51]

    The KOMA does not apply to a body merely because it has frequent contact with a governmental entity or regularly discusses government related topics. For example, staff meetings have long been recognized as exempt from the KOMA.[52] A single public official or employee is not a "body" subject to the KOMA.[53] Judicial agencies and bodies are likewise not subject to the KOMA.[54] Under the definition of a "public agency," private organizations are generally not subject to the KOMA.[55]

    Certain discussions by public bodies are statutorily exempt from the provisions of the KOMA.[56] K.S.A. 75-4318(a) specifically exempts deliberative discussions by bodies exercising quasi-judicial authority. Quasi-judicial is "a term applied to the action, discretion, etc. of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature."[57] The Supreme Court of Kansas has described a quasi-judicial proceeding as one that "requires a weighing of the evidence, a balancing of the equities, an application of rules, regulations and ordinances to facts, and a resolution of specific issues."[58] In Gawith v. Gage's Plumbing & Heating Co.,[59] the Court discussed the difference between a legislative function and a judicial function:

    "There is a distinction between the types of decisions rendered by different administrative agencies; and some such agencies perform judicial or quasi-judicial functions while others do not. In determining whether an administrative agency performs legislative or judicial functions, the courts rely on certain tests; one being whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative body must make, and another being whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.

    "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist, whereas legislation looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.

    "In applying tests to distinguish legislative from judicial powers, courts have recognized that it is the nature of the act performed, rather than the name of the officer or agency which performs it, that determines its character as judicial or otherwise."[60]

    A recent Kansas case concluded that a board of county commissioners acted as a quasi- judicial body, and not a legislative body, when determining whether to grant a zoning change for one specific tract of land.[61] Thus, it appears that the presence of due process...

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