Kansas Attorney General Opinion 1992-051

ROBERT T. STEPHAN
ATTORNEY GENERAL April 15, 1992
ATTORNEY GENERAL OPINION NO. 92-5 1
Joe Zima
School District Attorney
Unified School District No. 501
624 W. 24th Street
Topeka, Kansas 66611
Re: State Departments; Public Officers and Employees --
Public Officers and Employees; Open Public Meetings
-- Closed and Executive Meetings; Conditions;
Authorized Subjects for Discussions; Personnel
Exception; Employer-Employee Negotiations; Students
Schools -- Teachers' Contracts; Professional
Negotiations -- Applicability of Open Meetings Law;
Executive Sessions
Synopsis: K.S.A. 1991 Supp. 72-5423 and K.S.A. 75-4317 et
seq. may be read in harmony. Thus, although
K.S.A. 1991 Supp. 72-5423 mandates applicability
of the Kansas open meetings act to certain meetings
between professional employee organizations or
their representatives and a board of education or
its representative, the provisions of K.S.A.
75-4319 nevertheless permit certain discussions to
be closed. If a specific employee or student may
be discussed pursuant to K.S.A. 75-4319, a closed
executive session may permissibly include
individuals who aid the public body. Mere
observers may not attend executive sessions. Cited
herein: K.S.A. 1991 Supp. 72-5423; K.S.A.
75-4317; 75-4317a; 75-4318; 75-4319.

Dear Mr. Zima:
As legal counsel for U.S.D. No. 501, you request our opinion
on whether the bargaining teams of a board of education and a
professional employee's organization may recess from an open
meeting for a joint closed executive session, and if so, under
what circumstances. The Kansas national education association
restates the issue as this:
"Does the Kansas Open Meetings Act, K.S.A.
75-4317 et seq., or the Professional
Negotiations Act, K.S.A. 72-5413 et
seq., permit a board of education to
meet in executive session with
representatives of the collective
bargaining unit during professional
negotiations?"
K.S.A. 1991 Supp. 72-5423 provides in pertinent part:
"(b) Except as otherwise expressly
provided in this subsection, every
meeting, conference, consultation and
discussion between a professional
employees' organization or its
representatives during the course of
professional negotiation and every
hearing conducted by the secretary under
K.S.A. 72-5426, and amendments thereto,
for determination of the question of the
existence of impasse is subject to the
provisions of the Kansas open meetings
law, and any amendments or supplements
thereto. Meetings, conferences,
consultations and discussions held by the
secretary under K.S.A. 72-5426, and
amendments thereto, for investigation of
the question of the existence of impasse,
and meetings, conferences, consultations
and discussions held during the course of
and in connection with, and the meeting
required at the conclusion of, impasse
resolution proceedings, as provided for in
K.S.A. 72-5427 and 72-5428, and amendments
to such sections, are specifically made
exempt from the provisions of the Kansas
open meetings law, and any amendments or
supplements thereto." (Emphasis added).

K.S.A. 75-4317 et seq., the Kansas open meetings act
(KOMA), generally requires that meetings of a public agency,
as defined by K.S.A. 75-4318, be conducted openly unless
otherwise permissibly closed by law. Although we do not have
specific facts concerning the entity in question, it appears
and we will assume that, pursuant to K.S.A. 1991 Supp.
72-5423, the KOMA applies to the meetings of the entity.
Thus, unless otherwise excepted, meetings [as defined by
K.S.A. 75-4317a and K.S.A. 1991 Supp. 72-5423(b)] must be
conducted openly.
Statutory construction rules require that, whenever possible,
laws should be read in harmony. See Harris v. Shanahan,
192 Kan. 629 (1964); Hessell v. Lateral Sewer District,
202 Kan. 568 (1969); Scogin v. Nugen, 204 Kan. 568
(1970). K.S.A. 1991 Supp. 72-5423 states that, "except as
otherwise expressly provided in this subsection, every meeting
. . . is subject to the provisions of the Kansas open meetings
law. . . ." The statute does not specify that only portions
of the KOMA apply to such meetings. Thus, the KOMA
applies in its entirety to the meetings described by K.S.A.
1991 Supp. 72-5423.
K.S.A. 1991 Supp. 72-5423 specifically makes the KOMA
applicable to most meetings between a professional employees'
organization or its representative and a board of education or
its representative. However, in addition to the impasse
exception set forth in K.S.A. 1991 Supp. 72-5423(b), K.S.A.
75-4319, which is part of the KOMA, permits certain topics
to be discussed in executive session. Such topics include:
(b)(1), personnel matters of non-elected personnel; (b)(3),
matters relating to employer-employee negotiations whether or
not in consultation with the representative of the body or
agency; and (b)(5), 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.
K.S.A. 75-4319(b)(1) has been addressed by this office in
Attorney General Opinions No. 80-102, 81-39, 87-10, 87-169,
88-25 and 91-31. In addition, State v. U.S.D. No. 305, 13
Kan.App.2d 117 (1988) concerned use of this exception.
Generally stated these authorities permit bodies subject to
the KOMA to go into a closed or executive session in order
to discuss an individual employee of the public agency. This
type of closed discussion is intended to protect the personal
privacy of the individual employee. See State v. U.S.D.
305. K.S.A. 75-4319(b)(1) cannot be used to discuss groups
of employees, general employee policy, independent contractors
or individuals elected or appointed to a public body.

However, when an individual employee of a public agency is the
topic of discussion by that agency, such matters may be
permissibly discussed in executive session pursuant to K.S.A.
75-4319(b)(1).
Permissibly closed executive sessions may include individuals
who are not members of the public body but who aid the body in
its discussions. See Attorney General Opinion No. 91-31.
Thus, the school board's negotiating team may allow executive
session access to persons that assist the board in discussion
of an individual employee. However, if the non-board members
act only as mere observers wishing to learn about permissibly
closed discussion topics, such persons cannot be included in
executive sessions. See Attorney General Opinions No.
86-143 and 82-176. Mere observers may not attend executive
sessions called under the KOMA.
There may be some question as to whether the negotiating team
of the school board employs the individual being discussed.
However, as an entity created by the school board that does
employ certain individuals, we believe the personnel exception
set forth at K.S.A. 75-4319(b)(1) permits commissions or
groups created by the school board to discuss school board
employees pursuant to K.S.A. 75-4319(b)(1). Thus, it is our
opinion that the school board or its official bargaining team
may, pursuant to K.S.A. 1991 Supp. 72-5423(b) and K.S.A.
75-4319(b)(1), close an otherwise open meeting to discuss an
individual employee of the school board and may include in
such an executive session those individuals who aid the
negotiating team in that discussion.
K.S.A. 75-4319(b)(3) permits public bodies to meet in
executive session to discuss the conduct or status of
employee-employer negotiations. Such closed meetings may
include the authorized representative who is actually doing
the bargaining for the public agency. However, as discussed
in Attorney General Opinion No. 79-125, this exception to
mandatory openness may not be used if an employee or the
employee's representative is present. Thus, K.S.A.
75 - 4319(b)(3) does not permit closure of discussions between a
school board or its bargaining team and a professional
employee organization or its representative if the topic of
discussion is the conduct or status of negotiations.
K.S.A. 75 - 4319(b)(5) permits closure of open meetings in order
to discuss specific persons, including a student. This
permissive closure authority does not permit closed
discussions of students in general. However, if an individual
student is the topic of discussion by a school board or a
sub-entity of the school board delegated authority over such

matters, the public body may discretionarily choose to
close such discussions unless the student in question requests
an open meeting. In accordance with our discussion on K.S.A.
75 - 4319(b)(1), closed discussions occurring pursuant to K.S.A.
75 - 4319(b)(5) may include individuals who assist the body in
that discussion. Again, mere observers may not attend.
We note that the purposes of both the KOMA and K.S.A. 1991
Supp. 72-5423 point to a very limited use of any authority
available for closed discussions between employee
organizations and school boards. However, K.S.A. 1991 Supp.
72 - 5423(b) adopts all the provisions of K.S.A. 75-4317 et
seq., it does not merely state all meetings are open except
to the extent the impasse exception applies. There may be a
specific situation where K.S.A. 75-4319(b)(1) or (b)(5)
permits certain closed discussions between the entities in
question. Such closure should be limited to discussion
involving a specific individual employee or student and
should occur only in accordance with the dictates and
limitations established by K.S.A. 75-4319.
In summary, it is our opinion that K.S.A. 1991 Supp. 72-5423
and K.S.A. 75-4317 et seq. may be read in harmony. Thus,
although K.S.A. 1991 Supp. 72-5423 mandates applicability of
the Kansas open meetings act to most meetings between
professional employee organizations or their representatives
and a board of education or its representative, the KOMA
permits certain discussions to be closed if the terms of
K.S.A. 75-4319 apply. If discussion of a specific employee or
student may be closed pursuant to K.S.A. 75-4319(b)(1) or (5),
the executive session may permissibly include individuals who
aid the body discussing such a topic. Mere observers may not
attend executive sessions.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Theresa Marcel Nuckolls
RTS:JLM:TMN:bas Assistant Attorney General