By Roger Sims, rsims@linncountyjournal.com
The late Webster “Web” Hawkins, a member of the Kansas Newspaper Hall of Fame and publisher of the now-defunct Osawatomie Graphic, used to rail against what he called “secret sessions” held by governing bodies such as county commissions, city councils and school boards.
Those behind-closed-doors meetings – executive sessions usually meant to discuss personnel, legal, trade secret and other sensitive matters – are a necessity and as such are allowed under the Kansas Open Meetings Act (KOMA).
Hawkins’ extreme displeasure with secret sessions was his idea that the business of local governing bodies should be transparent and open to public scrutiny. And while his use of the word “secret” leaves a bad taste, his point was spot-on.
Of course in today’s litigious society, discussing an employee’s performance or lack thereof could be basis for a lawsuit. Ditto for discussing matters with an attorney or forcing a privately held business to divulge trade secrets in an open session. And of course, who wants to be publicly interviewed for a job?
Recently, matters that deal with security have been added to the topics that can be addressed in executive session.
Different governing bodies have been handling executive sessions differently. The La Cygne City Council keeps a copy of a guidelines on executive sessions at each of the council members’ tables. The Pleasanton council also has a copy of the “cheat sheet,” as City Administrator Becky Hegwald says.
The Linn County Commission is the least constrained when it comes to executive sessions and in fact may be violating the Kansas Open Meeting Act every week.
In the commission meeting on Monday, Feb. 24, Commission Alison Hamilton suggested that during the next meeting on Monday, March 3, the commissioners retire into executive session to discuss non-elected personnel concerning qualifications for hiring a county counselor. That would be a KOMA violation.
Although the purpose of that discussion would be commendable, the commissioners would presumably be talking about policy and not about an individual employee or employees. That discussion should be public.
If we may make a suggestion, it would be wise to have former county counselor Mark Hagen give the commission insight into the position in open session. After all, Hagen resigned his post after a couple of months because at least two of the commissioners were not following his advice.
That is actually a trend that appears likely to continue. Hagen has been working on two issues for the commission: a contract for trash compactors and a zoning issue. He has twice advised the commissioners to avoid comment on either of those issues, and Hamilton has twice ignored that advice.
The commission seems to have understood that it needs an attorney present – whether in person, by teleconference or by phone – in order to justify an executive session for attorney-client privilege. However, the executive sessions called for non-elected personnel seem to be more of a fluid matter.
Economic Development Director Chasity Ware regularly asks commissioners for executive sessions to discuss non-elected personnel, yet she has no employees working under her. It is doubtful that she is spending that much time every week talking about her own job performance.
Ware is a new employee, more than likely unaware of the legalities of executive sessions, but Commission Chair Jim Johnson is now a seasoned four-plus-year commissioner who should be cognizant of the state open meeting law.
While Hamilton is a new member of the commission, she also has attended nearly every commission meeting for more than a year and should be more aware of Kansas open meeting law.
According to KOMA, the commission can use the non-elected personnel reason to protect the privacy interests of the employee and can be used to interview job applicants. It does not include independent contractors, appointments to boards or committees, or public officers.
Ware could, however, request an executive session for data relating to the financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorship. This provision is called the "economic development exception" for a reason. She could also use executive session if the county was looking at purchasing real estate, say, for development into an industrial park.
During the commission meeting on Tuesday, Feb. 18, Hamilton expressed the wish that the commission could follow the lead of Barton County, which she says has a five-member commission and a county administrator. According to Hamilton, after a brief meeting, the commissioners head into offices where the public and county officials could visit with them.
One of the pitfalls of that is the relative ease in which serial meetings (i.e. one commissioner visiting with another and that commissioner visiting with yet another commissioner) could take place. A five-member commission would allow two commissioners to discuss county business with each other, but extra protections need to be in place to prevent sessions that violate KOMA.
Apparently Barton County uses a county administrator, which is someone who has the education to handle county affairs, much like school district superintendents who have advanced degrees that train them for their jobs. Linn County’s comprehensive plan approved nearly two years ago calls for the hiring of a county administrator, but as yet that hasn’t happened.
To be fair, none of the commissioners have received KOMA training, at least not recently. The Pleasanton City Council two years ago sat through training given by the Kansas Attorney General staff following a KOMA violation. The La Cygne Council recently agreed to receive training although their record has been violation-free in recent years.
In last year’s election, commission candidates committed themselves to transparency in county government. They need to make good on those promises, update their KOMA training, and work to ensure that the business of the county is done in public.
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