Kohl: Board’s executive sessions legitimate
Leavenworth County Attorney Frank Kohl said he believed Tonganoxie School Board members discussed a new organizational chart for the district in a series of executive sessions back in August.
But Kohl, the county's top law enforcement official, says board members did not violate the Kansas Open Meetings Act by doing so.
Kohl's opinions were expressed in a letter and subsequent interview Tuesday.
Shortly after the board's Aug. 28 meeting, The Mirror had asked Kohl to investigate whether the board talked about policy matters during a series of executive sessions called for discussion of non-elected personnel and matters of attorney-client privilege. After a total of three hours and 30 minutes behind closed doors, board members approved in public session -- without further discussion -- a new organizational chart to "streamline operations and improve communications."
"There is no evidence available to indicate that the USD 464 Board of Education violated the provision of KOMA during the executive sessions or during the regular public meeting," Kohl wrote in a letter to The Mirror, School Board President Leana Leslie and school district attorney Donna Whiteman.
The Kansas Open Meetings Act allows public boards to discuss "non-elected personnel" in private. Kansas Attorney General Paul Morrison and his former assistant Theresa Marcel Bush prepared an annotated guide to the law when Morrison took office in January. In it, they say this about executive sessions called to discuss non-elected personnel:
"To discuss an individual, not groups. ... The purpose of this exception is to protect the privacy interests of individuals. Discussions of consolidation of departments or overall salary structure is not a proper topic."
But Kohl said discussion of the organizational chart in the private session was allowable, because it was "part and parcel" of a confidential, investigative report presented by the board's attorney.
"I believe they discussed it as part of a recommendation in an investigative report they got from the attorney," he said.
Kohl added the board followed Kansas law by voting on the new organizational chart in open session.
Mike Merriam, a Topeka-based attorney with more than 30 years experience in media law, said from what he knew of the case, the school board discussed "a whole lot more than legal advice in the executive session; they discussed policy, and that's not allowed."
Merriam discounted the reasoning that adopting the chart in open session made the executive session discussions proper.
"That's working on the conclusion from the question," Merriam said.
John Taylor, editor of The Mirror, said he was disappointed with Kohl's interpretation.
"Under this ruling, it would seem any public body could ask its attorney to investigate any topic, have the attorney write an investigative report with recommendations, then freeze the public out merely by voting without discussion on the issue," Taylor said.
He said The Mirror would explore its options on the matter.