On Windy Hill: Please excuse my ignorance

I was one of three members of the public who attended last week’s open meetings training for the Osage City Council, which had agreed to take the training as the result of a violation of the Kansas Open Meetings Act in August.

I was disappointed that more spectators weren’t there, as it would have been a great opportunity for elected officials, board members, and committee members from across the county to learn about the law that affects all of the state’s public commissions, boards, councils and committees. I had at least expected members of Osage City’s various committees would have shown up for the training provided by the Kim Winn, deputy director of the League of Kansas Municipalities.

But spectators – one a member of the planning commission and the other two reporters – joined several city staff members, eight council members and the mayor for the one-hour training session. As I listened during the training, I thought about my disappointment in the public’s disinterest in learning about the state law that is supposed to keep the public’s business in the public’s view.

With the eight council members present, they fulfilled their agreement with the Osage County Attorney, who required the training in lieu of prosecution for the council’s violation of the Kansas Open Meetings Act earlier this year. For the most part, they seemed to listen intently as Winn quickly outlined the sections of the law. All in all, it was a pretty uneventful special meeting, and as the training adjourned I wondered if anything had happened there that the public would be interested in knowing about. Looking around me at empty seats and seeing obvious apathy about how government works, I just chalked up one more open meetings training as a benefit for me, and decided there wasn’t much need to write about it.

Since then, though, I’ve heard from several readers who asked how the training went and if it had happened at all. To more than one reader, I asked why they didn’t attend. More than one said, “I thought you’d be there.” Yeah, I was.

Not knowing if I’d report on it or not, I did take some notes during the training. So since some readers asked, I thought I’d share some of my thoughts on what Winn passed on to the Osage City’s elected.

I was also a little disappointed that the League was providing the training. I think a visit from the Attorney General’s office would have better served citizens who were wronged by the council’s violation. The League operates as a public agency that serves municipalities and elected officials – it does not serve the public and taxpayers that pay the cities’ membership to the organization. As such, I’ve noticed in past trainings I’ve attended, the League’s stance sometimes suggests that laws are an inconvenience to elected and city officials. Winn reiterated this stance during her presentation by referring to some sections of current and past law as a burden or burdensome. This contrasts with my opinion that no elected official should consider following the law a burden. In reality, if elected officials are truly there to serve the public, they bear no burden by conducting the public’s business in public.

Part of the city council’s agreement with the county attorney was that if there was any cost for the training, the council members were to pay it. The League provided the training as part of its member services, but that means the taxpayers’ funds that were used to pay dues to the organization also paid for the training. To comply with the agreement, I think the actual cost of providing the training should have been calculated and the elected officials should have paid that out of their pockets. Then the League should have refunded that amount to the city’s coffers and taxpayers.

But back to my notes:

Winn pointed out the law requires notification of meetings of governing bodies to anyone who requests it. This important stipulation keeps government open to the people by not allowing secret meetings. Although if no citizen takes the time to request notification, the governing body can still meet in secret and it’s not against the law. Sadly, and again showing public apathy, few local governing bodies ever receive these requests. Last year, this was the section of the law that the USD 421 Board of Education violated. The board had requests for notification, but ignored them for a special meeting. (The “punishment” was that the board was required to take training.)

Winn outlined the definition of a meeting: Interactive communication about business of a public body by a majority of a governing body. Winn talked about the past law that defined a meeting as a majority of a quorum of the public body. That section of the law was changed to “a majority of the membership of a body” a few years ago when KOMA was reworked to prohibit serial meetings.

I think the law ought to be changed back to a majority of a quorum, but this was one of the things that Winn said had been burdensome on elected officials. If the law had remained as it was, a majority of a quorum for Osage City would have meant that three officials talking about public business would constitute a meeting. As it is now, “Your magic number is five,” Winn told the Osage City Council. Meaning up to four officials can meet to talk about city business and have opportunity to secure votes for pet projects or otherwise influence other council members’ way of thinking. To me, this is deliberation of public business, and the public has the right to witness the decision-making process, including deliberations.

My understanding of their agreement with the Osage County Attorney, though, is Osage City council members are still bound by the old law. The agreement they signed says that a meeting occurs any time a majority of a quorum of the council interactively discusses affairs of the council. If three Osage City council members get together to talk about city business without providing proper notice, they would be violating the agreement.

Winn also talked about serial meetings, for which the old law was changed to prohibit. She noted one way to have a serial meeting is with the use of email. She advised council members against using email for talking about policy issues. A serial meeting happens if council members discuss public business with each other or in groups smaller than a majority, then some of those council members talk to other council members about the same subject, then the “magic number” comes into play. For Osage City Council, if the serial communications result in five members having interactive communication, it is a meeting, or an illegal meeting if the notification process was not followed. Winn said the serial meeting section was added to the law to prohibit an action that happened in the city of Topeka a few years back,  in which a staff member went to individual council members outside the public’s view to collect votes of approval for a major purchase.

“Be aware of public perception,” Winn advised the Osage City Council, saying that even if they are not violating the law by meeting in groups smaller than a majority, the public will still see it as reason to distrust them.

Winn also spoke about special meetings, noting they require notification to anyone who has requested it, and the topics for which a special meeting is called are the only topics that can be discussed during the meeting. Winn said work sessions are also considered as special meetings, unless the city enacts an ordinance that sets regularly scheduled work sessions. She noted that at regular meetings and regularly scheduled work sessions, council members can meet and talk about whatever subject they wished. Council Member Peroo expressed his interest in this manner of governance. “We need to do that,” he said.

Winn said that no part of KOMA requires an agenda for any meeting. This is a part of the state law that I feel needs to be changed. In some states, the requirement of an agenda is the heart of government openness laws. It is clearly understood in those places that the government is not open to the public if the public cannot know what public business its elected officials plan to consider.

Agendas are also useful tools for conducting business, in that if an agenda is set, all elected officials will know the business they will be considering before they get to a meeting, and have time to be informed about the issues before they consider them. Kansas needs an agenda requirement in KOMA.

Winn also offered advice on holding executive sessions, saying that meetings can only be closed for specific reasons outlined in the law. She recommended that public bodies write out all motions before going into executive session, and that motion should be included in the minutes in its entirety. KOMA requires the motion to include the justification and subject of the closed meeting and the time the meeting will be opened to the public.

Winn also talked briefly about secret ballots, which is what got the Osage City Council in trouble. There’s not much to say; it’s a simple point of the law: “No binding action by such bodies shall be by secret ballot,” the law says. Anyone who takes the time to read the law even once should be able to understand this simple rule.

Winn said that few elected officials intentionally violate open meetings law, but my experience has shown me that many elected officials intentionally remain ignorant of the law. And unfortunately in Kansas, ignorance is oftentimes accepted as an excuse for violating KOMA. Even when violations are proven, due to perceived ignorance of elected officials, training is the usual prescribed “punishment”.

Citizen, see how far this gets you if you commit an infraction: “So sorry, Officer, I was ignorant to the fact that there was a speed limit. Please excuse my ignorance.”

Winn noted that violators can be fined up to $500, but she said the real penalty for officials “is losing the public’s trust.”

I wish I could say I agree, but too many public servants’ actions show me some really don’t care if the public trusts them.

A good thing about the training is that the council has agreed that once they take the training, they now fully understand the open meetings law. If they ever violate KOMA again, and if the county attorney upholds his end of the agreement, they won’t be able to use ignorance as an excuse.


On Windy Hill, Wayne White sometimes writes about things he thinks about. He not only lives on a windy hill, he’s been known to be a windy writer.

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