Kansas Attorney General Opinion 2018-001

January 8, 2018
ATTORNEY GENERAL OPINION NO. 2018-1
Eric R. Yost
Sedgwick County Counselor
525 North Main, Suite 359
Wichita, KS 67203-3731
Re: 	State Departments; Public Officers and Employees—Public Officers
and Employees; Open Public Meetings—Closed or Executive Meetings;
Conditions; Authorized Subjects for Discussion
Synopsis: 	A motion to recess into a closed or executive meeting may only utilize
one justification as listed in K.S.A. 2017 Supp. 75-4319(b), but multiple
subjects may be discussed if those subjects fall within the justification
stated in the motion to recess into a closed or executive meeting. 	A
motion to recess into a closed or executive meeting must be recorded
in its entirety in the minutes of the public body or agency. 	The
recording of the motion is not “complete” if it merely summarizes the
actual motion in a manner that addresses only the three statutory
elements but omits other content of the motion as it was in fact made.
The statement describing the subject(s) to be discussed must be more
than a generic or vague summary, or a list of the subject(s) to be
discussed. 	The determination of whether a motion to recess into a
closed or executive meeting sufficiently describes the subject(s) to be
discussed is a fact-sensitive question which must be determined on a
case-by-case basis. 	Cited herein: K.S.A. 2017 Supp. 75-4317; 75-
4319; K.S.A. 2016 Supp. 75-4319.
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Eric R. Yost
Page 2
Dear Mr. Yost:
As the Sedgwick County Counselor, you ask our opinion on issues related to the
Kansas Open Meetings Act (KOMA).1 	Your questions are: (1) whether multiple
matters may be discussed in a single closed or executive meeting; (2) whether it is
sufficient for merely the elements of the statute to be in the public body’s or agency’s
minutes or whether the entirety of the motion must be in the minutes; and (3) whether
it is sufficient to include the matter to be discussed or if an additional description of
the subject to be discussed must be stated.
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.”2 	The KOMA is
interpreted 	liberally 	with 	exceptions 	narrowly 	construed 	to 	carry 	out 	the 	public
purpose of the law. 3
The KOMA provides a process by which a public body or agency subject to the
KOMA may recess an open meeting and enter into a closed or executive meeting.
Prior to July 1, 2017, K.S.A. 2016 Supp. 75-4319(a) stated:
Upon formal motion made, seconded and carried, all public 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 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 public body or agency. Discussion during the closed or executive
meeting shall be limited to those subjects stated in the motion. 4
Under this prior law, the “subjects” referred to one of the topics identified in K.S.A.
2016 Supp. 75-4319(b). 	The “justification” referred to an explanation of what was to
be discussed, without revealing confidential information. 5
During the 2017 legislative session, the Legislature amended K.S.A. 2016 Supp. 75-
4319(a) to read as follows:
1 K.S.A. 75-4317 et seq.
2 K.S.A. 2017 Supp. 75-4317(a).
3 State ex rel. Murray v. Palmgren, 231 Kan. 524, Syl. ¶ 4 (1982).
4 Emphasis added.
5 State v. U.S.D. No. 305, 13 Kan. App. 2d 290 (1986); Kan. Atty. Gen. Op. 1991-78.

Eric R. Yost
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Upon formal motion made, seconded and carried, all public 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: (1) 	A 	statement
describing the subjects to be discussed during the closed or executive
meeting; (2) the justification listed in subsection (b) for closing the
meeting; and (3) the time and place at which the open meeting shall
resume. 	The complete motion shall be recorded in the minutes of the
meeting and shall be maintained as a part of the permanent records of
the public body or agency. Discussion during the closed or executive
meeting shall be limited to those subjects stated in the motion. 6
Under the current law, “subjects” refers to an explanation of what is to be discussed,
without revealing confidential information. 	“Justification” refers to one of the topics
identified in K.S.A. 2017 Supp. 75-4319(b) such as, for example, personnel matters
of nonelected personnel. 7 In effect, the 2017 amendments transposed the meanings
of “subjects” and “justification” in comparison with prior law.
Whether Multiple Matters May Be Discussed in a Single Closed or Executive Meeting
Any motion to recess to a closed or executive meeting must include the justification
for closure as well as an explanation of the subjects to be discussed, without
revealing 	confidential 	information. 8 	The 	issue, 	then, 	is 	whether 	the 	2017
amendments grant the authority to a public body or agency to recess into a closed or
executive meeting for more than one justification and discussion of more than one
subject.
In analyzing the issue you raised, we note the following rule of statutory construction:
When the legislature revises an existing law, it is presumed that the
legislature intended to change the law from how it existed prior to the
amendment, and it is presumed that the legislature does not intend to
enact useless or meaningless legislation. 9
We first consider whether a public body or agency may utilize more than one
justification for closing a meeting in a motion to recess into a closed or executive
meeting. 	Under the prior law, the term “subjects” was plural in nature and granted
public bodies and agencies the authority to enter into a closed or executive meeting
for more than one of the topics identified in K.S.A. 2016 Supp. 75-4319(b). However,
under the current law, the term “justification,” which now has the meaning assigned to
the term “subjects” in the prior law, does not include an “s” on the end of the word
6 L. 2017, ch. 73, § 4 (emphasis added).
7 K.S.A. 2017 Supp. 75-4319(b)(1).
8 We note that the motion also must include the time and place that the open meeting will resume, but
that requirement is not at issue here. See K.S.A. 2017 Supp. 75-4319(a).
9 State v. Van Hoet, 277 Kan. 815, 826 (2004).

Eric R. Yost
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and may or may not be plural. 	However, because we presume that a change of the
existing law was intended, we conclude that the authority to enter into a closed or
executive meeting has been restricted to only one of the justifications identified in
K.S.A. 2017 Supp. 75-4319(b). For example, a public body could not enter into a
single closed or executive meeting based on the need to discuss personnel matters
of nonelected personnel 10 and for the preliminary discussion of the acquisition of real
property.11
The next question is whether a public body or agency may discuss more than one
subject during a closed or executive meeting. The current law states that the motion
must describe the “subjects” to be discussed. 12 	Therefore, the plain language of
K.S.A. 2017 Supp. 75-4319(a) clearly allows a public body or agency to discuss
multiple subjects in a closed or executive meeting if those subjects fall within the
justification 	cited 	in 	the 	motion 	to 	recess 	into 	a 	closed 	or 	executive 	meeting.
However, as noted below, the motion must adequately describe each subject to be
discussed.
We therefore conclude that a motion to recess into a closed or executive meeting
may only utilize one justification as identified in K.S.A. 2017 Supp. 75-4319(b), but
multiple subjects may be discussed if those subjects fall within the justification cited
in the motion to recess into a closed or executive meeting.
Whether It Is Sufficient for Merely the Elements of the Statute to Be in the Public
Body’s or Public Agency’s Minutes or Whether the Entirety of the Motion Must Be in
the Minutes
In 2017, the Legislature also amended the requirement to record the motion to
recess into a closed or executive meeting in the public body’s or agency’s minutes.
Under the prior law, a public body or agency was required to record “[s]uch motion,
including the required statement” in the minutes. 13 	Under current law, a public body
or agency must record the “complete motion” to recess into a closed or executive
meeting. 14 In essence, the issue is whether the motion must be recorded verbatim or
whether the minutes may simply record the three required elements of a motion to
recess into a closed or executive meeting.
In analyzing this issue, we again follow the rule of statutory construction that
presumes that a revision of existing law is intended by the Legislature to change the
law from how it existed prior to the amendment. 15
10 K.S.A. 2017 Supp. 75-4319(b)(1).
11 K.S.A. 2017 Supp. 75-4319(b)(6).
12 K.S.A. 2017 Supp. 75-4319(a).
13 K.S.A. 2016 Supp. 75-4319(a).
14 L. 2017, ch. 73, § 4.
15 Van Hoet at 826.

Eric R. Yost
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The process to recess into a closed or executive meeting in the prior law required
that the “motion” be recorded in the minutes, 16 but the current process requires that
the “complete motion” be recorded in the minutes. 17 	Because we presume that a
change to the existing law was intended, we believe that a motion to recess into a
closed or executive meeting must be recorded in its entirety in the minutes. 	We do
not mean to suggest that the minutes must include all extraneous words, such as
“ums” and “ahs,” that may have been included when a member of a public body or
agency made a motion to recess into a closed or executive meeting. Such a
requirement would be useless and not further the public’s right to know as such
extraneous words are not substantive in nature.18 	We conclude, however, that the
recording of the motion is not “complete” if it merely summarizes the actual motion in
a manner that addresses only the three statutory elements but omits other content of
the motion as it was in fact made.
Whether It Is Sufficient to Include the Matter to Be Discussed or if an Additional
Description of the Subject to Be Discussed Must Be Stated
In 2017, the Legislature also amended K.S.A. 2016 Supp. 75-4319(a) to require the
motion to recess into a closed or executive meeting to include a statement of what is
to be discussed, without revealing confidential information. 19 Under the prior law, the
motion was required to include “[t]he justification for closing the meeting.” 20 	The
interpretation of the requirements of this phrase has changed over the years.21
As we previously stated, when the Legislature amends an existing law, courts
presume that a change was intended by the Legislature. 22 	The previous law simply
required a “statement”23 of what is to be discussed while the current law requires a
“statement describing”24 the subject to be discussed. 	“Describe” is defined as “to
represent or give an account of in words.” 25 	The plain language of K.S.A. 2017
Supp. 75-4319(a) adding the word “describing” clearly indicates that the Legislature
wanted more than a generic or vague summary of what is to be discussed during a
closed or executive meeting.
Therefore, we conclude that a public body or agency must do more than provide a
generic or vague summary, or a list of the subject(s) to be discussed. 	However, the
KOMA does not require that the statement describing what will be discussed to be so
16 K.S.A. 2016 Supp. 75-4319(a).
17 K.S.A. 2017 Supp. 75-4319(a).
18 We note that the minutes will assist a public body or agency in responding to any complaint alleging
a violation of the requirements of K.S.A. 2017 Supp. 75-4319.
19 L. 2017, ch. 73, § 4; K.S.A. 2017 Supp. 75-4319(a).
20 K.S.A. 2016 Supp. 75-4319(a).
21 Compare, e.g., State v. U.S.D. No. 305, 13 Kan. App. 2d 117, 121 (1988) with Kan. Atty. Gen. Op.
1991-78.
22 Van Hoet at 826.
23 K.S.A. 2016 Supp. 75-4319(a).
24 K.S.A. 2017 Supp. 75-4319(a).
25 https://www.merriam-webster.com/dictionary/describe (accessed January 3, 2018).

Eric R. Yost
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detailed that it negates the usefulness of a closed or executive meeting. The
determination of whether a motion to recess into a closed or executive meeting
sufficiently describes the subject(s) to be discussed in a specific situation is a fact-
sensitive question which must be determined on a case-by-case basis.
Summary
A 	motion 	to 	recess 	into 	a 	closed 	or 	executive 	meeting 	may 	only 	utilize 	one
justification as listed in K.S.A. 2017 Supp. 75-4319(b), but multiple subjects may be
discussed if those subjects fall within the justification cited in the motion to recess into
a closed or executive meeting. A motion to recess into a closed or executive meeting
must be recorded in its entirety in the minutes of the public body or agency. The
recording of the motion is not “complete” if it merely summarizes the actual motion in
a manner that addresses only the three statutory elements but omits other content of
the motion as it was in fact made. 	The statement describing the subject(s) to be
discussed must be more than a generic or vague summary, or a list of the subject(s)
to be discussed. 	The determination of whether a motion sufficiently describes the
subject(s) to be discussed is a fact-sensitive question which must be determined on a
case-by-case basis.
Sincerely,
Derek Schmidt
Attorney General
Cheryl L. Whelan
Assistant Attorney General
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