The following position paper was presented to the South Central Kansas Delegation of Representatives and Senators in Feb. of 2009. It is applicable to the current selection of a new president for Wichita State University. If we are to select a new president of WSU who is not pre-committed to issues detrimental to the interests of WSU, it will be necessary that the Board of Regents allow discussion of "policy" matters in open public meeting, not conduct the entire selection process in closed executive session, as they accomplished when president Beggs was one of three candidates presented to the Board of Regents for their selection of the new president of WSU.
Date: 27 Feb. ‘09
State of Kansas
Legislator
RE: MEMORANDUM IN SUPPORT OF AMENDMENT
TO THE KANSAS OPEN MEETINGS ACT
Dear Legislator:
This Memorandum shall discuss the issue of the Board of Regents affective vitiation of the Kansas Open Meetings Act, K.S.A. § 75-4317 et seq. in general, and specifically, K.S.A. § 75-4319, as it applies to the Board of Regents.
I. EXECUTIVE SESSIONS
The executive session b (1) exception should only be for personal matters of the specific employee, and not for policy matters and the functions and duties of his position. Those policy matters and issues are required to be discussed in open session, and specifically is that so for Presidents and CEO’s of our universities; as instructed by the enacting legislative intent of the KOMA, Attorney General opinions, and opinions of the Kansas Supreme Court, cited below.
II. THE QUESTION
The question is:
“Will the legislature be informed of policies of the Board of Regents individually imposed upon university Presidents and CEO’s, or will the legislature continue to be required to massively fund the Board, without proper knowledge of the Board of Regents’ hidden individually imposed policies.”
If policy matters are required: by the KOMA statute; and consistent with the past enacting legislative intent, Attorney General opinions, and Kansas Supreme Court opinions, cited below; to be discussed in open public meeting, not only will the legislature then have proper knowledge, but also the Shocker Black & Golds will then have the opportunity to attend those meetings and monitor the process as it relates to our university, and to then speak to our legislators should we have concerns. Presently, we are denied access and knowledge of policy matters significantly affecting our university that are always conducted in closed executive session of the President CEO of the university, with the Board thereby vitiating the legislative intent of the KOMA in the first instance.
III. BOARD OF REGENT’S IMPOSED POLICIES
The Board can have their policies, but they need to take credit for them in open public meeting so that the legislature and the public will know, that it is the Board of Regents that is requiring the policy on the institution and the chief executive officer, not the chief executive officer legally responsible for the institution he represents making the decision independent of the Board. But the CEO of the Board and the Board of Regents members want to keep their policy determinations in secret and hid from responsibility to the legislature and the public: precisely because they know they would be criticized for unmeritorious policies; further could not justify unmeritorious policies applied to one university only; and further, contra to the stated legislative statute and intent of the legislature.
IV. THE PROBLEM
The fundamental problem is that the Board of Regents uses the exception of §75-4319 (b)(1):
“(b) No subjects shall be discussed at any closed or executive meeting, except the following: (1) Personnel matters of nonelected personnel;”,
as a way to vitiate the entire purpose of the statute and the statute itself. They accomplish their intent to preclude any legislative or public knowledge of substantive policy matters when hiring or annually reviewing the chief executive officer of state universities, by simply “restating” they are adjourning into executive session for purposes of “Personnel matters of nonelected personnel”, and relying upon a broadened view of State v. BD. Of Educ. Of Unified Sch. D.305, 13 Kan.App.2d 117, 764 P.2d 459 (Kan.App. 1988), Syllabus 2, thus:
“Under the facts here presented, [involving potential disciplinary matters of four individuals] when a public body faces discussions of topics, some of which are exempt and some of which may not be exempt under the Kansas Open Meetings Act, if segregation of the materials into open and closed sessions would make a coherent discussion pragmatically impossible, it is reasonable to close the entire meeting.” (Emphasis added) [Brackets added].
Guess what? The Board of Regents has never since found it “convenient” to discuss policy matters in open session and personnel matters in closed session, even when disciplinary matters are not involved. The public generally doesn’t have a thirst for knowledge about personnel matters, but it does have a concern for knowledge about policy matters and how the universities it funds are administered. The Board of Regents uses the personnel exemption as a way to cover direction of policy matters in secret, in closed executive session. For the Board of Regents, apparently as opposed to other Boards and Committees in the state, the Kansas Open Meetings Act does not effectively apply to the Board. In the process, they fail to even identify the subjects or topics to be discussed in closed executive session, or any justification for closing the meeting, in violation of and as required by the statute.
In short, they use the stated exemption itself as the justification, and wholly fail to identify any subjects or topics they intend to discuss. The result is the Board’s closed executive meetings totally control policy matters and the operation of the given institution – information that ought to be available to the legislature, and public knowledge – but because it is secret, allows for corrupt policy. Nor, to our knowledge, has the Board of Regents ever seen fit for any reason, to hold any such meeting in open session, although they are limited to the facts of the court’s decision in State v. Board. All such meetings are secret, and held in closed executive meeting. It is submitted the Board has been able in the past and currently continues to secretly direct substantive policy unmeritoriously inconsistently among universities, without the legislatures knowledge and without public knowledge. The system of public knowledge and legislative statutory intent has been corrupted, and needs to be fixed if any kind of effective public knowledge, equitable, justifiable, and uniform policy is to be accomplished at least as applied to WSU and Wichita/Sedgwick County tax payers.
V. SPECIFIC AUTHORITIES
A. Policy Matters are Legislatively Intended to be
Discussed in Open Public Meetings
A cogent Kansas Supreme Court case discussing the purpose of the Kansas Open Meetings Act, is State Ex Rel. Murray v. Palmgren, 231 Kan. 524, 646 P.2d 1091 (1982). There the Court stated:
“[7] Open Meetings Act was enacted for public benefit and is therefore construed broadly in favor of public to give effect to its specific purpose. K.S.A. 75-4317 et seq.”;
“[12] Open Meetings Act is not unconstitutionally overbroad on basis of an inhibiting effect on rights of public officials to assemble and discuss public affairs, because elected officials have no constitutional right to conduct government affairs behind closed doors, and because the Act places no constraints on purely private discussions of public officials, but regulates only the conduct of public business. K.S.A. 75-4317 et seq.” (Emphasis added);
“This theory, however, flies in the face of the purpose of the KOMA, stated in K.S.A. 75-4317(a): ‘In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.’ Obviously, the intent behind the statute is to protect the public. In Johnson v. Killion, 178 Kan. 154, 158-59, 283 P.2d 433 (1955), this court stated: ‘It is fundamental that where a statute is designed to protect the public, the language must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out.’ See also Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978).” Id. at 1096 (Emphasis added);
“The First Amendment does indeed protect private discussions of governmental affairs among citizens. Everything changes, however, when a person is elected to public office. Elected officials are supposed to represent their constituents. In order for those constituents to determine whether this is in fact the case they need to know how their representative has acted on matters of public concern. Democracy is threatened when public decisions are made in private. Elected officials have no constitutional right to conduct government affairs behind closed doors. 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. As such the KOMA is not unconstitutionally overbroad.” Id. at 1099. (Emphasis added).
Rather than to broadly construe K.S.A. § 75-4319, as directed by the Kansas Supreme Court, the Board of Regents narrowly construes the statute to preclude even identification of the subjects or topics intended to be discussed, and equally narrowly construes and fails to disclose any justification for closing the meetings. Rather, they simply parrot the (b)(1) exemption, as if the exemption itself was the “justification.”
While the regent members of the Board are not elected, but are appointed by the governor, they nevertheless are subject to the KOMA by the legislative statute’s applicability. (See K.S.A. § 75-4318 (a)).
The regents duties are not to conduct the policy affaires of the state’s universities, in secret in accord with their own personal wants; but their duty is to follow the policy desires of the legislature and inform the electorate, “not hide from it”; particularly is that so when they direct policy unfairly applicable to one university, WSU, and Wichita/Sedgwick County tax payers, primarily for the direct monetary benefit of KU.
As stated by Attorney General Opinion 88-25:
“Discussions concerning consolidation of departments and the addition or elimination of job functions or positions may not be held in executive session under the “personnel matters” exception. Cited herein: K.S.A. 75-4317; K.S.A. 1987 Supp. 75-4318; K.S.A. 75-4319.” (Emphasis added).
“In Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 669 (1986), the court reasoned: ‘The KOMA is remedial in nature and therefore subject to broad construction in order to carry out the stated legislative intent.’
Therefore, the presumption of the KOMA is in favor of openness and exceptions to the KOMA are narrowly construed. See Tacha, The Kansas Open Meetings Act: Sunshine on the Sunflower State?, 25 U.Kan.L.Rev. 169, 175(1977). The exceptions to the KOMA permitting certain subjects to be discussed behind closed doors were enacted on the basis that in certain instances the interests involved in preserving confidentially outweigh the public’s right to know. See Smoot and Clothier, Open Meetings Profile: The Prosecutor’s View, 20 Washburn L.J. 241, 274 (1981). The purpose of the ‘personnel matters of non-elected personnel’ exception is to ‘protect the privacy of the employees, saving[s] personal reputations, and encouraging qualified people to select and remain in the employ of government.’ (Emphasis added.) Smoot and Clothier at 275. See Tacha at 195.” (Emphasis added).
“In Attorney General Opinion No. 81-39 we opined that a public body may recess [*6] into executive session to discuss individual employees, but that ‘[d]iscussions concerning groups of employees which do not infringe upon the individual are beyond the purpose for which the exception for personal matters was created.’ The proposed discussions do not concern employees as individuals but relate to policy matters and the functions and duties of employee positions. Therefore, the privacy interests of individual employee reputations is not as [sic at] stake and the public’s right to know of discussions concerning such policy matters is paramount. We must conclude that the Commission may not recess into executive session under the personnel matters exception for such discussions.” (Emphasis added).
Accordingly, and likewise, the regents can have their executive session for personal matters that no one cares about, but they shouldn’t be able to discuss, for example: whether or not the president of WSU can ask the Board of Regents for capital improvement moneys for a new building; or discuss the addition or elimination of football, for which subject matter the Board even has no jurisdiction in the first instance; or any other policy matter, in closed executive session, in the process of secretly committing the chief executive officer of the institution to their particular policy. They can have the policy, but they need to take credit for it in open public meeting so that the legislature and the public will know, that it is the Board of Regents that is requiring the policy on the institution and the chief executive officer, not the chief executive officer legally responsible for the institution he represents making the decision independent of the Board. But the Board of Regents members want to keep their policy determinations in secret and hid from responsibility to the legislature and the public: precisely because they know they would be criticized for those policies; further could not justify such unmeritorious policy applied to one university only; and further, contra to the stated legislative statute and intent of the legislature. Hence, in our view, the need for a definitive amendment to preclude the corrupt acts of the Board of Regents. The Regents and the chief executive officer of the Board hold positions of public trust enjoined upon them by operation of law, and owe their duty to the legislature and the public. (See Attorney General Opinion 80-168).
B. Public Official vs. Employee Status
of Universities and CEO of the Board
Another issue ignored by the Board of Regents by narrowly construing the statute, is the issue of whether the chief executive officer of each university in the state is an “employee”, or rather a “public official”. A summary of Attorney General Opinion, 87-10 states the issue thus:
“The ‘personnel matters’ exception to the open meetings law, K.S.A. 75-4319(b)(1), pertains to employees of public agencies. Persons appointed to public boards and committees are not employees, they are public officers. Therefore, discussions concerning the qualifications of candidates for such appointed positions cannot take place in an executive session but must be held in an open meeting. Cited herein: K.S.A. 75-4317; K.S.A. 1986 Supp. 75-4318; K.S.A. 75-4319.”
The full Attorney General Opinion, 87-10 discusses what constitutes the definition of a “public official”, and
states:
“Appointed members of boards and commissions are not employees, but are public officials. [Clearly, regents are appointed by the governor and are public officials. What about chief executive officers of public institutions?] ‘[A] public officer is one whose functions and duties concern the public, and who exercises some portion of the sovereign power of the state.’ 63A Am.Jur.2d Public Officers and Employees §9. See Sowers v. Wells, 150 Kan. 630, 634 (1939). [Clearly, chief executive officers of public institutions fit this Kansas Supreme Court and Attorney General definition, and are “public officers”] A person who ‘receives his authority from the law, and discharges some of the functions of government’ is generally considered a public officer. 63A Am.Jur.2d at §5. See The State v. Rose, 74 Kan. 262, 269-70 (1906).” [Again, clearly, chief executive officers of public institutions fit this Kansas Supreme Court and Attorney General definition, and are “public officers”]
(Square brackets supplied)(Emphasis added).
C. The Statute Requires Subjects for Discussion
In Closed Session to be Identified
Another inconvenient issue for the Board of Regents that the Board doesn’t even bother to narrowly construe, but just ignores, is the Statute’s requirement, K.S.A. § 75-4319, for stating in any motion to recess for a closed or executive session, the justification for doing so, as well as stating the subjects or topics to be discussed:
“(a)... Any motion to recess for a closed or executive meeting shall include a statement of (1) the justification for closing the meeting, (2) the subjects to be discussed during the closed or executive meeting and (3) the time and place at which the open meeting shall resume. Such motion, including the required statement, shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.” (Emphasis added).
The Board, in derelict of its duty, narrowly assumes that it states the Justification, simply by stating the exemption. It does not! They are two distinct requirements. Neither does the Board, in like fashion, state the subjects or topics to be discussed, but simply states the exemption, as if it speaks for itself. It does not!
For purposes of hiring chief executive officers or reviewing them, and discussing policy matters particular to the institution they legally represent, the Board of Regents considers such officers to be “employees”, so as to conduct the public’s business in secret. But when it comes to any other purpose, for example like the recent TV appearances together in Wichita by Dr. Beggs, Dr. Wefald, and Dr. Hemenway, soliciting support to pressure the legislature for some 800 plus millions in state tax moneys for university building maintenance purposes; or KU’s public solicitation of support for 90 plus millions for three buildings for alleged western Kansas pharmaceutical student purposes, the Board of Regents and the chief executive officers themselves, hold the chief executive officers out to the public as titled “public officers”, presidents and chancellor, in charge of the public function of administration of the public’s higher educational institutions. They should not be allowed to have it both ways, and the public’s business should be conducted in the open, with the Board of Regents required to take responsibility for and provide public justification for the policies they require individual institutions to follow, which alleged identified above policies they presently cannot justify either to the legislature or the public. If so, then the public would understand why one university gets to follow one policy, but another is not allowed to do so. We submit, it is precisely because the Board of Regents does not want to be publicly accountable or even accountable to the legislature, for policies they know they can not publicly justify, that they have bastardized the process and vitiated the statute’s effective applicability to the Board of Regents. And, of course, with a budget and desire to spend it as they want, of approximately 15 - 17 percent of the State’s annual budget, in excess of some 1.2 billion dollars the last time we checked in about 1995; the Board has ever power incentive to keep the public and the legislature in effective darkness as to the undisclosed basis of the decision making and how they are running our higher education system and allocating our moneys, as opposed to the allocations themselves. Nor can any chief executive officer complain publicly, if he intends to keep his position. We submit the legislature never meant the system to be set up or the Board of Regents conducted, as it is presently operated; and that it is time to correct the injustice and corrupt policy of operation of the Board the only way that it can be, and that is by amendment to the controlling statutes.
But back to the specifics of the statue. The subjects or topics are required by the statute to be delineated, not simply the parroting of the category of the subjects or topics.
A useful article on the KOMA is Kansas Sunshine Law; How Bright Does It Shine Now? The Kansas Open Meetings Act, The Journal Of The Kansas Bar Association, 34-June/July 2003,
by Theresa Marcel Nuckolls, of the Attorney General’s office. Says Ms Nucholls:
“The purpose of the Kansas Open Meetings Act is to promote an informed electorate. (5: K.S.A. 75-4317). The Act is to be interpreted liberally, and its exceptions narrowly construed, to carry out the purpose of the law. (6: Memorial Hospital Ass’n v. Knutson, 239 Kan. 663, 669, 722 P.2d 1093 (1986)).” ...
“The motion for going into executive session should contain both the subject and a justification statement; the two are not the same thing. (121: Kan. Att’y Gen. Ops. No. 91-78; 86-33. But see State v. U.S.D. 305, 13 Kan.App.2d 17, 764 P.2d 459 (1988). ... While there is some argument as to what constitutes the subject versus the justification, it appears that the subject is one that is listed in K.S.A. 75-4319 (124: Or some other law) and the justification is a general explanation or policy statement concerning why an executive session is being held.” ...
“K.S.A. 75-4319(b) sets forth a list of 14 topics that may be discussed in an executive session.” (Emphasis added).
Having identified some of the problems that occur as a result of the Board of Regents improper mental manipulation and narrow construction of the statute, to in effect vitiate the statute in total as it applies to the Board; when considering policy matters at our higher education institutions that the Board wishes to instruct, while maintaining the secrecy of its instruction and responsibility for same; all in the guise of co-mingling policy matters, with hiring a chief executive officer or providing for his review, so as to find it “inconvenient” to separate the two functions; it is now time to consider the statute itself, and then how it is to amend the statute to require proper compliance with legislative policy and the statute.
VI. SOLUTION FOR THE PROBLEMS
A. Amendment to K.S.A. § 75-4319
The following exhibits in bold the suggested amended language for the statute:
“75-4319. 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 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 a statement of (1) the justification for closing the meeting, (2) the specific subjects of each of the relied upon categories of exemptions as identified in section (b) to be discussed during the closed or executive meeting and (3) the time and place at which the open meeting shall resume. Such motion, including the required statement, shall be recorded in the minutes of the meeting and shall be maintained as a part of the permanent records of the body or agency. Discussion during the closed or executive meeting shall be limited to those subjects stated in the motion.
(b) No subjects shall be discussed at any closed or executive meeting, except the following categories of subjects:
(1)Personnel matters of nonelected personnel. For purposes of subsection (b)(1), candidates for the position of chief executive officer (president or chancellor) of a Kansas higher education institution (university or community college) and holders of such positions, shall be considered public officers and not personnel or employees; nor shall policy matters be discussed with candidates for the position of chief executive officer of a Kansas higher education institution, or holders of such positions, in closed executive session.
(2)...(14)...” ...
(e)
The bracketed language, (president or chancellor) and (university or community college) I believe to be unnecessary, but we put it in just to be even more specific about what the language said. For purpose of the statute, we would not include it.
B. Amendment to K.S.A. § 75-4320
An associated statute that could be considered for amendment as identified by bold language below, is K.S.A. § 75-4320:
75-4320 Penalties. (a) Any member of a body or agency subject to this act who knowingly violates any of the provisions of this act or who intentionally fails to furnish information as required by subsection (b) of K.S.A. 75-4318, and amendments thereto, shall be liable for the payment of a civil penalty in an action brought by the attorney general or county or district attorney, in a sum set by the court not to exceed $500 for each violation. Violation of the provisions of K.S.A. 75-4319 shall subject such violators to ouster of position pursuant to K.S.A. 60-1205. In addition, any binding action which is taken at a meeting not in substantial compliance with the provisions of this act shall be voidable in any action brought by the attorney general or county or district attorney in the district court of the county in which the meeting was held within 21 days of the meeting, and the court shall have jurisdiction to issue injunctions or writs of mandamus to enforce the provisions of this act.
This last amendment to K.S.A. § 75-4320 isn’t as important as is the amendment to K.S.A. § 75-4319. It was thought it might be useful, so the issue was raised, but it is not necessary for our purposes.
VII. CONCLUSION
We believe the above suggested amendments would preclude the commitment by the Board of Regents of any new president of WSU in the hiring process, or in the review process: not to seek capital improvement moneys for any new building from the Board of Regents for WSU, resulting in effective double taxation of Wichita/Sedgwick County taxpayers uniquely in the state from all other counties; and not to consider the reinstatement of football for WSU – for which issue the Board of Regents even has no jurisdiction in the first instance – to resolve our now 22 year continual bleeding of traditional students problem caused by the then KU controlled Board of Regents in 1986, even when $20,000,000 has been identified to start the fund raising to reinstate the program.
With the amendment to K.S.A. § 75-4319, those matters would then have to be discussed in open public meeting, and the Board would be loath to disclose any such corrupt policy to the public and legislature.
Without a traditional football program, like all other universities in the state, not to mention the community colleges, WSU can not appeal to traditional students wishing a traditional college experience, and their folks in Sedgwick County are required to send them to KU or K-State, or to a close community college like Butler for two years and then to KU or K-State, at much greater expense than if they could stay home and attend WSU.
This asserted present policy also has Board of Regent tuition accountability rules affects as students from the Wichita area that would normally go to WSU, now go to KU and K-State for a traditional college experience; resulting in their first years tuition being kept by KU and K-State, which moneys are then lost to WSU. WSU then attempts to avoid having to make up for further lost tuition, as required by the tuition accountability rules, by putting some 2500 scholarships on the local 1.5 mill levy to mitigate against the continual bleeding of students. But this is a rather complex issue – although we submit, one of the substantive solicitation of students and tuition accountability bases and reasons for the original KU/Board of Regents policy of suspending football at WSU in the first instance, and continuing that policy presently – that would in any case be resolved by amendment to the statutory language above.
In appreciation of your consideration and hopefully support of the statute language amendment solution to these problems,
Respectfully submitted
Shocker Black & Golds
By:
Fred Marrs
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