Kansas Attorney General Opinion 2016-003

March 1, 2016
ATTORNEY GENERAL OPINION NO. 2016- 3
The Honorable Julia Lynn
State Senator, 9th District
State Capitol, Room 445-S
300 S.W. 10 th Avenue
Topeka, KS 66612
Re: 	State Departments; Public Officers and Employees—Public Officers and
Employees—Kansas 	Open 	Meetings 	Act; 	Meetings 	of 	State 	and
Subdivisions Open to Public; Exceptions; Closed or Executive Meetings
Labor and Industries—Workers Compensation—Workers Compensation
and 	Employment 	Security 	Boards 	Nominating 	Committee; 	Meetings
Required to Be Open
Synopsis: 	Whether the Kansas Open Meetings Act applies to a specific body is a
fact 	specific 	determination. 	If 	the 	Workers 	Compensation 	and
Employment Security Boards Nominating Committee is a public agency
subject to the Kansas Open Meetings Act, it may not recess into closed or
executive session to interview and/or discuss the applicants for workers
compensation administrative law judges, workers compensation appeals
board 	members, 	or 	employment 	security 	board 	of 	review 	members
because such applicants are not personnel within the meaning of the
Kansas Open Meetings Act.
Cited herein: K.S.A. 2015 Supp. 44-551; K.S.A. 44-555c; K.S.A. 44-709;
K.S.A. 75-4317; K.S.A. 75-4319; K.S.A. 75-5708.
* 	* 	*

The Honorable Julia Lynn
Page 2
Dear Senator Lynn:
As State Senator for the 9th District, you request our opinion on an issue related to the
Kansas Open Meetings Act (KOMA).1 In your letter, you ask:
[W]hether the workers compensation and employment security boards
nominating committee . . . created under K.S.A. 44-551(e) may use
executive session to interview, and discuss applicants or prospective
employees which the committee is responsible for selecting, with binding
action occurring only during public session.
The Workers Compensation and Employment Security Boards Nominating Committee
In 2013, the Kansas legislature created the workers compensation and employment
security boards nominating committee (nominating committee),2 which meets:
as needed to provide the workers compensation and employment security
board of review appointing authorities with nominees for appointments to
the position of:
(1) Workers compensation administrative law judge;
(2) workers compensation appeals board member; and
(3) employment security board of review. 3
The nominating committee consists of seven members appointed by the governor as
follows:
Each of the following shall select one member to serve on the nominating
committee by giving written notice of the selection to the governor who
shall appoint such representatives to the committee:
(1) The Kansas secretary of labor;
(2) the Kansas chamber of commerce;
(3) the national federation of independent business;
(4) the Kansas AFL-CIO;
1 K.S.A. 75-4317 et seq.
2 K.S.A. 2015 Supp. 44-551(e).
3 K.S.A. 2015 Supp. 44-551(h).

The Honorable Julia Lynn
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(5) the 	Kansas 	state 	council 	of 	the 	society 	for 	human 	resource
management (KS SHRM);
(6) the Kansas self-insurers association; and
(7) the secretary of labor, who shall select a nominee from either an
employee organization as defined in K.S.A. 75-4322, and amendments
thereto, or a professional employees’ organization as defined in K.S.A.
72-5413, and amendments thereto. 4
When a vacancy for a workers compensation administrative law judge (ALJ) or workers
compensation 	appeals 	board 	(appeals 	board) 	member 	occurs, 	the 	nominating
committee reviews qualified applications as submitted to it by the director of workers
compensation (director).5 The committee then nominates one of the qualified applicants
to fill the vacancy and submits that nomination to the secretary of labor (secretary). The
secretary may accept the nomination and appoint the nominee to the position of ALJ or
appeals board member, or the secretary may reject the nomination and request that the
nominating committee forward another nominee for that position. 	If the secretary
requests another nominee, the nominating committee nominates another person for the
position. 6 	Thus, 	the 	nominating 	committee 	simply 	recommends 	persons 	for
appointment by the secretary and does not appoint any ALJ or appeals board member.
The application and appointment process for the employment security board of review
(board of review) follows a different process. 	In 2013, the legislature created the board
of review, 7 which reviews unemployment compensation benefit decisions made by a
referee.8 	When a vacancy occurs on the board of review, the nominating committee
submits a nominee to the governor. 	The governor may accept the nomination and
submit the nominee to the senate for confirmation, or reject the nomination and request
another nomination from the nominating committee. 9 As with an ALJ or appeals board
member, the nominating committee simply recommends persons for appointment.
However, the legislature did not establish a method by which the nominating committee
receives applications. Additionally, the governor appoints and the senate confirms board
of review members.
Functions of Workers Compensation Administrative Law Judge, Workers Compensation
Appeals Board and the Employment Security Board of Review
The secretary may appoint up to 10 ALJs to consider matters pursuant to the workers
compensation act.10 ALJs have the same powers as district court judges.
4 K.S.A. 2015 Supp. 45-551(e).
5 K.S.A. 2015 Supp. 44-551(i); K.S.A. 2015 Supp. 44-555c(d).
6 K.S.A. 2015 Supp. 44-551(i).
7 K.S.A. 2015 Supp. 44-709(f)(1). See also L. 2013, Ch. 104, § 3.
8 K.S.A. 2015 Supp. 44-709(f)(7).
9 K.S.A. 2015 Supp. 44-709(f)(2).
10 K.S.A. 2015 Supp. 75-5708(b).

The Honorable Julia Lynn
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Administrative law judges shall have power to administer oaths, certify
official acts, take depositions, issue subpoenas, compel the attendance of
witnesses and the production of books, accounts, papers, documents and
records to the same extent as is conferred on the district courts of this
state, and may conduct an investigation, inquiry or hearing on all matters
before the administrative law judges. 11
ALJs must be attorneys admitted to practice law in Kansas but may not engage in the
private practice of law during their term as an ALJ. 12 	ALJs also are subject to
disciplinary action, including dismissal and suspension, by the secretary of labor, 13
receive 	a 	salary 	for 	their 	service,14 	and 	are 	allowed 	reasonable 	and 	necessary
expenses incurred during the discharge of their duties. 15
If a party wishes to appeal an ALJ’s decision, that appeal is taken to the appeals board.
The appeals “board shall have exclusive jurisdiction to review all decisions, findings,
orders and awards of compensation of administrative law judges under the workers
compensation act.”16 	The appeals board reviews questions of law and fact from
evidence presented before an ALJ. 17 	The appeals board thus acts as an appellate
court.
Appeals board members are appointed by the secretary of labor, and must be attorneys
admitted to practice law in Kansas. 18 	As with ALJs, each appeals board member may
not engage in the private practice of law, receives a salary for their service, and is
allowed reasonable and necessary expenses incurred during the discharge of their
duties. 19 	The appeals board is housed “within the division of workers compensation of
the 	department 	of 	labor 	and 	all 	budgeting, 	personnel, 	purchasing 	and 	related
management functions of the board shall be administered under the supervision and
direction of the secretary of labor.”20
Finally, the review board reviews unemployment compensation benefit decisions made
by a referee. 21 The board:
on its own motion, may affirm, modify or set aside any decision of a
referee on the basis of the evidence previously submitted in the case; may
11 K.S.A. 2015 Supp. 44-551(l)(1).
12 K.S.A. 2015 Supp. 75-5708(b).
13 K.S.A. 2015 Supp. 75-5708(c).
14 K.S.A. 2015 Supp. 44-551(k).
15 K.S.A. 2015 Supp. 44-551(m).
16 K.S.A. 2015 Supp. 44-555c(a).
17 Id.
18 K.S.A. 2015 Supp. 44-555c(a), (b).
19 K.S.A. 2015 Supp. 44-555c(c).
20 K.S.A. 2015 Supp. 44-555c(a).
21 K.S.A. 2015 Supp. 44-709(f)(7).

The Honorable Julia Lynn
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direct the taking of additional evidence; or may permit any of the parties to
initiate further appeal before it. The board shall permit such further appeal
by any of the parties interested in a decision of a referee which overrules
or modifies the decision of an examiner. The board may remove to itself
the proceedings on any claim pending before a referee. Any proceedings
so 	removed 	to 	the 	board 	shall 	be 	heard 	in 	accordance 	with 	the
requirements of subsection (c).22
Review board decisions are subject to review pursuant to the provisions of the Kansas
judicial review act.23
The Kansas Open Meetings Act
We believe that a review of the KOMA is beneficial. 	A common-law right to attend
meetings of governmental bodies does not exist in Kansas. 	Instead, the right to attend
such meetings is established and governed by the KOMA. 24 The purpose of the KOMA
is stated as follows: 	“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.” 25 	The KOMA is interpreted liberally and exceptions
narrowly construed to carry out the public purpose of the law. 26
After convening an open meeting, a public body may recess into a closed or executive
session in order to privately discuss a subject listed in K.S.A. 75-4319 as long as the
statutory procedure is followed for going into executive session. 27 	One of the subjects
which may be discussed in an executive session is “personnel matters of nonelected
personnel.” 28 	It has been acknowledged that the purpose of this exception is to protect
the privacy interests of employees, save personal reputations and encourage qualified
applicants to remain in government employ.29
We assume without deciding that the nominating committee is subject to KOMA.30 Your
question then turns on whether the nominees are “personnel” under the meaning of the
KOMA.
22 Id.
23 K.S.A. 2015 Supp. 44-709(i).
24 State ex rel. Stephan v. Board of Seward County Comm’rs, 254 Kan. 446, Syl. ¶ 2 (1994); Associated
Press v. Sebelius, 31 Kan. App. 2d 1107, Syl. ¶ 7 (2003).
25 K.S.A. 2015 Supp. 75-4317(a).
26 State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 4 (1982).
27 K.S.A. 2015 Supp. 75-4319(a).
28 K.S.A. 2015 Supp. 75-4319(b).
29 State of Kansas v. USD 305, 13 Kan. App. 2d 117, 119 (1988).
30 The KOMA only applies to certain bodies. 	See K.S.A. 2015 Supp. 75-4318(a). 	For purposes of
answering your question, we will assume the nominating committee is one such body although we do not
conduct the fact-specific analysis necessary to make that actual determination. 	Whether the KOMA
applies to the nominating committee depends on whether the nominating committee is a “legislative and
administrative bod[y]” of the state or an “agenc[y] of the state.” Id. This is a fact-specific determination,

The Honorable Julia Lynn
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Although the KOMA does not define the term “personnel,” this office has opined that the
term includes employees of a public agency 31 and applicants for employment 32 but does
not include persons appointed to boards or committees 33 , independent contractors34
and municipal court judges 35 . In other words, if the nominees are public officers instead
of employees, they would not qualify as “personnel” under the KOMA.
The Kansas Supreme Court addressed the distinction between employees and public
officers in Durflinger v. Artiles.36 	In that case, the court determined “whether staff
doctors at a state mental institution are public officers or public employees.” 37 	As
summarized by several Attorney General Opinions, 38 Durflinger “concluded that the
essential characteristics of public office 	are: (1) a position created by statute or
ordinance, (2) a fixed tenure, and (3) the power to exercise ‘some portion of [the]
sovereign function of government.”39 In discussing these characteristics of public office,
the court stated that:
[The] key element of such test is that “officer” is carrying out sovereign
function. Spring v. Constantino, 168 Conn. 563, [568,] 362 A.2d 871, 875
[(1975)]. Essential elements to establish public position as “public office”
are: position must be created by constitution, legislature, or through
authority 	conferred 	by 	legislature, 	portion 	of 	sovereign 	power 	of
government must be delegated to position, duties and powers must be
defined, directly or impliedly, by legislature or through legislative authority,
duties must be performed independently without control of superior power
other 	than 	law, 	and 	position 	must 	have 	some 	permanency 	and
continuity. 40
We now apply the Durflinger characteristics of public office to ALJs, appeals board
members and review board members.
and the five-part test to determine whether a body is an agency of the state for purposes of the KOMA
was set forth by the Kansas Supreme Court in State ex rel. Murray v. Palmgren, 231 Kan.524, 535 (1982)
(citing Open Meetings Profile: The Prosecutor’s View, 20 Washburn Law Journal 241 (1981)). See also
Memorial Hospital Association, Inc. v. Knutson, 239 Kan. 663, 669 (1986); Kansas One-Call Systems,
Inc. v. State, 294 Kan. 220, 234-35 (2012).
31 Attorney General Opinion Nos. 1992-51, 1987-169 and 1981-39.
32 Attorney General Opinion No. 1996-61.
33 Attorney General Opinion No. 1987-10.
34 Attorney General Opinion Nos. 2002-28 and 1987-169
35 Attorney General Opinion Nos. 1983-133 and 2002-28.
36 234 Kan. 484 (1983) (disapproved of on other grounds by Boulanger v. Pol, 258 Kan. 289, 298 (1995)).
37 Durflinger, 234 Kan. at 501.
38 See, e.g., Attorney General Opinion No. 2015-19 (Deputy Secretary in the Environment Division at the
Kansas Department of Health and Environment is not a public office by appointment); Attorney General
Opinion No. 2013-19 (the term “officer” can include appointed individuals); Attorney General Opinion
1999-11 (public works director is not a city officer); Attorney General Opinion No. 95-68 (a member of a
judicial nominating committee is a public officer).
39 Durflinger, 234 Kan. at 503.
40 Durflinger, 234 Kan. at 503 (quoting Black’s Law Dictionary (5 th ed. 1979)).

The Honorable Julia Lynn
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As to the first characteristic of public office from Durflinger, we find that statutes created
the positions of ALJs, appeals board members, and review board members. 	Although
not using direct language, the legislature established the position of ALJ by authorizing
the secretary to appoint up to 10 ALJs 41 and by legislating details about the position
such as qualifications and salary. 42 	The appeals board was established by statute. 43
The review board also was established by statute.44
The second characteristic of public office from Durflinger is whether the ALJs, appeals
board members and review board members are appointed for a fixed tenure. 	The
answer is yes for all three. 	ALJs are appointed to four year terms and may be
reappointed. 45 	Appeals board members also are appointed for four years and may be
reappointed. 46 	Review board members are appointed to four year terms47 and may not
serve more than two consecutive terms.48
The final characteristic of public office from Durflinger is whether the ALJs, appeals
board members and review board members may exercise the sovereign function of
government. 	In an opinion regarding a municipal court judge, this office previously
opined that “one holding the position of judge at any level of government is vested with
a part of the powers of the sovereign, and is entrusted with an important public
responsibility.”49 	Therefore, we opined that a judge could not be an independent
contractor.
We previously have opined on the issue of whether, based on the facts presented, “the
Emporia municipal court judge qualifies as ‘personnel’ as that term is used in K.S.A.
2001 Supp. 75-4319(b)(1).”50 	The facts important to our decision at that time included:
specific term of office; appointed panel which reviewed the applicant qualifications and
made 	recommendations 	to 	the 	city 	commission; 	statutory 	description 	of 	duties;
supervisory and discretionary authority; independence of office; direct control and
supervision of an employer; and, qualifications prescribed by law. 	We stated that
“[m]ost judges possess these distinguishing criteria, thus signifying that a judge is a
public officer having a significant degree of independence in exercising sovereign
powers.” 51
41 K.S.A. 2015 Supp. 75-5708(b).
42 K.S.A. 2015 Supp. 44-551.
43 K.S.A. 2015 Supp. 44-555c(a) (“There is hereby established the workers compensation appeals
board.”)
44 K.S.A. 2015 Supp. 44-709(f)(1) (“There is hereby created an employment security board of review . . .”)
45 K.S.A. 2015 Supp. 44-551(j)(1).
46 K.S.A. 2015 Supp. 44-555c(a), (e).
47 K.S.A. 2015 Supp. 44-709(f)(1).
48 K.S.A. 2015 Supp. 44-709(f)(3).
49 Attorney General Opinion No. 1983-133.
50 Attorney General Opinion No. 2002-28.
51 Id.

The Honorable Julia Lynn
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After reviewing the statutory provisions regarding the powers of ALJs, appeals board
members and review board members, we believe that these positions possess the
characteristics described in Durflinger, including the exercise of sovereign powers.
Consequently, the nominees are public officers and not employees. 	We therefore do
not 	believe 	that 	ALJs, 	appeals 	board 	members 	and 	review 	board 	members 	are
personnel within the meaning of the KOMA.
In conclusion, if the nominating committee is an agency of the state subject to the
KOMA, then it may not recess into closed or executive session to interview and/or
discuss the applicants for ALJs, appeals board members or review board members.
Sincerely,
Derek Schmidt
Attorney General
Cheryl L. Whelan
Assistant Attorney General
DS:AA:CW:sb