It is a factual issue. The KOMA applies to state and local public agencies (those related to the government). It does not apply to private entities. The KOMA also applies to any subordinate group formed by such public agencies (e.g. committees, sub-committees etc.). This means that KOMA applies to state boards, commissions, committees, city councils, county boards of commissioners, township boards, rural water district boards, public library boards, etc. and most groups formed by such entities in order to assist them with public business. The KOMA does not apply to private persons or meetings of private groups such as home owner's associations, church groups, private clubs, private businesses, political party caucuses, etc.
No. The KOMA does not apply to single persons. It applies to "public bodies" which requires there be at least two people.
No. Not unless the staff meeting also includes participation by a majority of a public body subject to the KOMA
Yes, unless the House or Senate, or one of their committees, adopts a rule exempting a particular body from the KOMA. Thus, in order to determine if the KOMA applies, the Rules of the House or Senate (or committee in question) must be reviewed.
Not if the body is deliberating on a case/matter before it. For example, a zoning appeals board may privately discuss a case it is trying to decide.
No. If the group in question is subject to the KOMA, and it holds a meeting as defined by the KOMA, the meeting must comply with the KOMA.
If a group is subject to the KOMA, what does the KOMA require them to do?
If the KOMA applies to a body or group, there are two main requirements: (a) Their meetings must be open and (b) Notice of meetings must be (individually) provided to those requesting notice. All meetings subject to the KOMA must be conducted openly - that means that the public must be allowed to listen to the discussion. Can I use cameras or tape recorders at a public meeting subject to the KOMA?
Yes. A public body subject to the KOMA cannot prohibit the use of such devices. It can, however, make their use subject to reasonable rules that are designed to prevent disruption of public meetings, safety hazzards, or other legitimate concerns. Does a group subject to the KOMA have to allow the public to speak at all meetings?
No. The KOMA does not require that the public be allowed to talk at public meetings; unless some other law requires it, whether to allow the public a chance to speak at public meetings is a policy decision. Can a public body subject to the KOMA conduct a meeting by telephone?
Yes. As long as it complies with all the requirements of the KOMA. Do they have to move to another place if there are too many people in a room or some people can't get into the meeting?
The KOMA does not require that public meetings be moved to larger or better locations. Unless there is evidence that the meeting is deliberately being held in a place in order to prevent public attendance, the size or location of the room is not a KOMA violation. Can a public body take a secret binding action?
Binding action must be taken openly. That means any binding vote on a public matter needs to be made in open session. However, some actions taken by a public body (such as spending decisions) may have been previously made by delegating authority to an individual; thus, one fact issue may be when and how decisions were originally made.
A meeting of a public body subject to the KOMA has three elements; (a) An interactive discussion (NOTE: discussion alone triggers the KOMA, it is not necessary that action or votes be taken); (b) by and between at least a majority of the body; (c) on matters relating to the functions of that body. All three elements must be present to trigger the KOMA.
What is a "Majority"?
A "majority" means the next whole number greater than one-half of the total number of members. E.g. the "majority" of a five member body is 3; the "majority" of a nine member body is 5.
Does a meeting have to be "prearranged" for the KOMA to apply?
No. All that is required is that the three elements of a meeting occur; (a) An interactive discussion (NOTE: discussion alone triggers the KOMA, it is not necessary that action or votes be taken); (b) by and between at least a majority of the body; (c) on matters relating to the functions of that body. All three elements must be present to trigger the KOMA. Can a majority of members of a public body informally discuss public matters outside of an open meeting?
No. Informal discussions before, after, or during recesses of a public meeting are subject to the KOMA. Is it OK to privately discuss public matters as long as no action is taken?
Binding action or voting is not necessary; discussion is what triggers KOMA. Can members of a public body subject to the KOMA use other people, the telephone, notes, or email to privately discuss public matters?
Not if it involves a majority of the public body. If an interactive discussion on the affairs of the body takes place, among the threshold minimum number of members, it is subject to the KOMA. It does not matter what method is used to conduct the discussion. Can members privately discuss when to hold meetings?
Yes. It is not encouraged, because of the temptation to discuss other things or the appearance of impropriety, but if the only way to arrange meeting times and places is to directly contact other members of the same body, the topic alone is not considered covered by the KOMA. Can members attend a general interest meeting of another group?
Yes, as long as they refrain from any private discussions on the affairs of their body, they may attend conferences where general topics are being presented.
Notice of meetings must be provided to those requesting notice. There is no KOMA duty to provide notice unless it has been requested.
All that has to be done is to make a request for notice of meetings; all regular and/or special meetings. The KOMA does not require that requests for notice be in writing. Oral requests are valid. However, because it often becomes harder to prove that such requests were made, we urge those who want to request such notice to put their requests in writing and keep a copy.
Not under the KOMA. The KOMA only requires that public bodies provide the time, place and date when it holds meetings. It does not require that a public body decide, ahead of time, if a specific topic will be discussed and then provide interested persons with notice of that decision.
Notice must be made or attempted to be made to each individual person/entity requesting notice. A one time notice of regular meetings times/dates/places is sufficient unless there is a meeting (or meetings) held at another or different time/date/place; then additional notice is required.
No. Notice may be legally given verbally. However, we recommend it be in writing for evidentiary purposes.
No. The KOMA does not require notification through these methods.
Notice requests may be allowed to expire once a year, but prior to discontinuing providing notice, the public body must let those persons know that their request is expiring so that it can be renewed if they'd like to continue getting notice.
No. Notice is only required under the KOMA if it has been requested.
The body may go into an executive session (after convening an open meeting), in order to privately discuss a matter, if (a) the discussion is on a topic listed in K.S.A. 75-4319 and (b) the correct procedure is followed for going into executive session.
Not under the KOMA. The KOMA allows executives session discussions; it does not require them.
No. Some other laws, or considerations such as fiduciary duty, personal privacy rights, or contracts, may require or influence such confidentiality. But the KOMA itself does not require that the topics listed in K.S.A. 75-4319 always be kept private.
Only members of the public body holding the discussion have a right to be in executive sessions. The public body may discretionarily include anyone they believe will aid them in that discussion.
No. If the public body allows one "general listener" to attend, the discussion must be open to the rest of the general public.
No. All binding action must be publicly taken. Executive sessions may only be used to discuss matters. However, a public body can reach a consensus while in executive session.
First the public body must be in an open session, before going into an executive session.
Then, a motion must be made, and seconded.
The motion must contain statement of Justification for closure; Subject(s) to be discussed; and (3) Time and place open meeting will resume. Example: "Madam Chairman, I move we recess into executive session to discuss disciplinary action against a student in order to protect the privacy of the parties involved. We will reconvene the open meeting in the conference room at 8:30 p.m."
No. Motions for executive session should contain subject and justification statement, which are not the same thing. The subject is one of the topics listed in K.S.A. 75-4319(b). The justification is an explanation of what is to be discussed (without revealing confidential information.)
Yes. All executive session motions must be recorded in minutes.
Those topics listed in K.S.A. 75-4319(b) can be privately discussed by a public body subject to the KOMA. A copy of that statute is available on-line at www.kslegislature.org There are currently 14 topics listed. These include: Personnel matters relating to non-elected personnel; consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship; (3) matters relating to employer-employee negotiations whether or not in consultation with the representative or representatives of the body or agency; confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships; 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; preliminary discussions relating to the acquisition of real property; . . . And (13) matters relating to security measures, if the discussion of such matters at an open meeting would jeopardize such security measures, that protect specific systems, facilities, or equipment.
Yes. If that person is an employee of that body (or an applicant for employment) K.S.A. 75-4319(b) allows executive session discussions about individuals who are employed by the body holding that executive session discussion.
No, not under the "personnel" exception; an independent contractor is not an employee.
No. If it chooses to create an agenda, it should include all matters planned for discussion but agendas can be amended. The public body may discuss matters not on an agenda that come up at the last minute.
Not under the KOMA. The KOMA does not speak to minutes or agendas, except to require that motions to go into executive session be recorded in the minutes.
No, at least not under the KOMA. The KOMA only requires that motions to go into executive session be recorded. Recording anything else in minutes is a discretionary decision.
The KOMA can be enforced by the Attorney General, by county or district attorneys, or by private citizens.
No. Violations of the KOMA are civil in nature, not criminal.
Up to $500 fine per violation (per member violating it); injunction/mandamus/declaratory order; voiding illegal action (if a public prosecutor files a petition within 21 days after the alleged violation); possible grounds for ouster or recall (separately pursued actions).
No. The courts rarely assess the fine provisions. Plus, in 1986, the Kansas Supreme Court created what are called "technical violations: "The court will not void any action and will overlook technical violations of the law if the spirit of the law has been met, there has been a good-faith effort to comply, there was substantial compliance with the KOMA, no one was prejudiced, and the public's right to know had not been effectively denied. Stevens v. Board of Reno County Comm'rs, 10 Kan.App.2d at 526.
You may file a complaint with either the county or the district attorney, or the Attorney General. Click here to file a complaint with the attorney general's office. They have concurrent jurisdiction to investigate or bring an action. It is the policy of the attorney general's office to ask that all complaints be made in writing, together with any supporting documents. The Attorney General will refer an alleged KOMA violation by a local unit of government to the county/district attorney.
No. Decisions on how or if to investigate or prosecute are discretionary on the part of the prosecutor. These prosecutors act on behalf of the general public, not as private attorneys for the persons filing the complaint.
Yes. Any individual can file a KOMA action. If they need legal advice or assistance in doing so, they may want to contact a private attorney.
The Plaintiff has the initial burden to show a prima facie case. If they meet that burden, it then shifts to the defendant to justify its actions.
No. There is no requirement of specific intent to violate the law. "Knowing" violation occurs when there is purposeful commission of the prohibited acts. Palmgren, 231 Kan. at 536-37.
A plaintiff may receive court costs if a violation is established. Defendant may receive costs only if action was frivolous.
In the county where the action occurred. K.S.A. 75-4320a(a)
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