Republicans and Democrats in Topeka may not see eye to eye on much.

But Kansas lawmakers seem to agree that the State Finance Council — a public body within the Department of Administration with broad authority to allocate taxpayer funds and that counts among its members the governor and leadership from both parties — should be allowed to avoid deliberating publicly before making decisions.

This status quo persists even though the council is subject to the Kansas Open Meetings Act, which requires its meetings to be open to the public.

As a result, the council effectively makes secret decisions that often have a significant effect on Kansas taxpayers. For example, in recent years, the council’s closed-door discussions have led to large allocations of public funding, such as authorizing $304 million in tax incentives for Integra to build a semiconductor plant last year and brokering an agreement with Panasonic in 2022 that the state touts as “one of the largest electric vehicle (EV) battery manufacturing facilities of its kind in the United States in Kansas.” Earlier this month, the council emerged from behind closed doors to announce a payment of $4,000 to settle a discrimination lawsuit against the state.

These practices deprive the public of its right to be “informed,” as KOMA guarantees. How does the council get away with this?

Public bodies holding a ‘meeting’ may not be required to deliberate in public

For starters, it appears the council believes that a “meeting” under KOMA can still be “open” even though no meaningful discussion takes place in public view.

Such an interpretation flies in the face of KOMA’s intent to allow the public to observe such meetings. Under that law, a “meeting” means “any gathering … for the purpose of discussing the business or affairs of the public body or agency.” Moreover, “all meetings” of public bodies “shall be open to the public.”

This language could easily be interpreted to mean that a “meeting” necessarily involves and includes deliberations, and thus such discussions must take place in public as part of any open meeting subject to KOMA.

But curiously, neither the Kansas appellate courts nor the Attorney General’s Office have ever squarely determined whether the public has a right to observe deliberations. As a result, the council appears to rely on authority such as a 1997 attorney general opinion finding that public bodies can satisfy their obligations under KOMA, and avoid public deliberations, merely by voting in public.

It should go without saying that if all deliberations resulting in those votes are permitted take place in private, KOMA is effectively meaningless because the essence of a “meeting,” discussions about policy, would never need to be public.

So much for the “informed electorate” KORA’s drafters surely imagined when the law was enacted in 1972.

Some nearby states, like Iowa and Missouri, have solved this problem by including the word “deliberation” in their definition of the term “meeting” or by using more precise language for that definition, but others have proved that common sense is all that’s needed.

For example, when confronted with Colorado’s definition of “meeting,” which also does not include the word “deliberation,” that state’s Supreme Court found 50 years ago that the public was permitted to observe deliberations because “one has not participated in a public meeting if one witnesses only the final recorded vote.”

It reasoned that “when the majority of the public body’s work is done outside the public eye, the public is deprived of the discussions, the motivations, the policy arguments and other considerations which led” to the body’s decision.

In other words, the court made clear that “a public meeting is not meant to permit ‘rubber stamping’ previously decided issues.”

Why Kansas authorities have not similarly interpreted our state’s definition of “meeting” remains an open question. But what is clear is that until the council starts following Colorado’s example, there is no reason to believe that it will ever deliberate in open session.

Public bodies are allowed to reach ‘consensus’ during closed session

As foreshadowed above, the second way the council avoids public deliberations is by conducting them behind closed doors since at least 2020. As Kansas Reflector reported that year, the council’s procedure during its meetings is to sort “through details in executive session” before its members “reconvene the public meeting for nothing more than a vote to affirm or reject the deal.”

In fact, according to Rep. Troy Waymaster, a Bunker Hill Republican and longtime member of the council, the body sees no need to deliberate in public because its business is discussed “in closed session.” He says that “when we come back and it’s back to an open meeting, we do not discuss those items. We just have the vote.”

Although it is true that not every part of an otherwise “open meeting” is required to take place in public view, the public body can only recess from open session to executive session to discuss certain enumerated topics. During executive session, discussion is “limited to those subjects stated in the motion,” and “no binding action by such public bodies or agencies shall be by secret ballot.”

Crucially, “such recesses shall not be used as a subterfuge to defeat the purposes of this act.” However, authority interpreting KOMA from both the state’s Supreme Court and the attorney general indicate that a body is permitted to “reach a consensus as long as they do not take a formal vote outside of an open meeting.”

This interpretation allows the public’s business to be conducted behind closed doors and reduces action the body takes during open session to a rubber stamp. If this is how the law is to be interpreted, KOMA’s purpose — to promote a “representative government” — cannot be achieved.

Does the council violate KOMA when it fails to deliberate publicly?

As it turns out, when the State Finance Council voted to allocate $829.2 million in tax incentives on July 13, 2022, its failure to deliberate in public before it voted was lawful.

But not because that sequence of events necessarily complied with KOMA.

Rather, APEX, the law the Legislature passed with bipartisan support a few months before announcing the deal with Panasonic, provided that a deal could not be struck until it was “reviewed and approved” by the council. The law, endorsed by members of both parties, includes this attack on transparency: “Notwithstanding the provisions of the Kansas Open Meetings Act, any review, testimony or discussion of a proposed agreement (by the council) shall not be open to the public.”

The mere existence of that provision highlights the Legislature’s complicity with the council’s secrecy agenda. With the blessing of lawmakers from both parties, the council can claim that it followed the law when it failed to deliberate in public before voting to authorize the Panasonic deal.

But APEX only applied to Panasonic and wasn’t in play when the council recently paid a $4,000 settlement in a discrimination case. The law that did apply, the Kansas Tort Claims Act, doesn’t contain APEX’s confidentiality provision. Still, there was no public deliberation. Presumably, any discussion took place during executive session, which was immediately followed by a unanimous roll call vote.

Was the purpose of executive session to avoid KOMA by holding discussions in private that should have been public?

And if KOMA somehow doesn’t require deliberation to be in public view, why would it have been necessary for APEX to exempt the council from KOMA in 2022?

A troubling future

The foregoing strongly suggests that Kansas leaders are willing to keep the public in the dark whether they have specific authority to circumvent KOMA or not.

This is particularly worrisome given the possibility that the state is poised to offer expansive tax incentives to certain nearby professional sports franchises. Will the Legislature again allow a cornucopia of taxpayer money to be spent without giving the public the courtesy of observing even the final stage of negotiations?

As these and other future high-dollar projects unfold, the Kansas Coalition for Open Government calls on our state’s leaders to be mindful of the public’s right, guaranteed under KOMA, to observe at least some deliberations going forward.

Max Kautsch is an attorney whose practice focuses on First Amendment rights and open government law. Through its opinion section, the Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.