Wichita school board members did not knowingly violate the Kansas Open Meetings Act when they met in secret to interview candidates for superintendent, according to a ruling issued this week by the Sedgwick County District Attorney’s Office.
The board did, however, violate a statutory requirement by failing to justify its reason for the eight-day private session, which members later explained was to protect the privacy of job candidates, the ruling said.
The ruling also shows that the board interviewed two candidates for the superintendent post. Board president Sheril Logan previously had refused to say how many people the board interviewed.
“What the Board did behind closed doors … it was entitled to do behind closed doors, and no public notice was required,” said the ruling, issued by Deputy District Attorney Ann Swegle.
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“If the purpose for the closed-door session was proper under the law, it is difficult to conclude that the Board intended to subvert KOMA or substantially undermine the protections it affords.”
A complaint filed on behalf of The Eagle alleged that an eight-day private session approved by the board on Feb. 13 violated the open meetings law because board members should have adjourned their meeting and provided notice of when and where they planned to gather again.
According to the ruling, the board met at 1 p.m. on Feb. 18 at the office of Fleeson Gooing Coulson & Kitch in downtown Wichita and interviewed two candidates. There was no public notice of the meeting.
Board members resumed their public meeting on Feb. 21 and voted to hire Alicia Thompson as superintendent. At a subsequent meeting on Feb. 27, they unanimously approved a three-year contract with Thompson.
Wendy Johnson, spokeswoman for the district, said district officials are “pleased” with the ruling and “mindful of the technical violation” noted in it.
“Legal counsel will work with the board to adjust its motions going forward,” Johnson said via e-mail Monday.
“The Board of Education will continue its commitment to transparency in the manner in which the district does business, and we appreciate the thoughtful consideration given to this matter by the district attorney’s office.”
Max Kautsch, an attorney for the Kansas Press Association who represented The Eagle in the complaint, said the ruling illustrates the need to strengthen Kansas transparency laws.
The word “knowingly” should not be part of the statute, Kautsch said, because it could allow public officials to violate the open meetings law as long as they follow the advice of counsel, even if that advice is in violation.
“Whether a body intends to violate KOMA should not be the legal standard,” he said. “Because then you can just plead ignorance, and is that doing the public any good?”
In the ruling, Swegle wrote: “Without an intent to subvert KOMA, a recessed or adjourned meeting doesn’t violate the law. … Looking at the facts here, we have not found sufficient evidence to support a finding that the Board, in meeting as it did between February 13 and February 21, intended to subvert KOMA.”
The ruling also points to a lack of statutory definitions for terms such as “recess,” “adjourn” and “adjournment,” and a “lack of controlling case law addressing the issue of a multi-day executive session.”
“This result does not suggest that an executive session of a more extended duration, for example 6 months, could not violate KOMA,” the ruling says. “Each case must be judged on its own facts, but a lengthier delay may well reflect an intent to subvert KOMA in a given situation.”
The board was searching for someone to replace John Allison, who will leave in June to head the Olathe school district.
During the district’s previous superintendent search in 2009, board members called public meetings and provided notice to those who requested it. At some of those meetings, they recessed into closed-door sessions to conduct interviews or discuss candidates but reconvened in public afterward to adjourn.
Kautsch, the attorney for The Eagle, said Monday’s ruling “speaks to a failure in the law itself” and should be a concern for proponents of open government.
“School boards and other public agencies should not be allowed to do what the school board did in this case,” he said. “Legislative action is needed.”
Steve Coffman, editor of The Eagle and Kansas.com, agreed.
“It flies in the face of logic, when all meetings are presumed to be public, that a government body could recess or adjourn and reconvene in a closed session anytime and anywhere it wants without notifying the public,” he said.