As for complaints regarding violations of open meetings, none was found with the information provided. The instances mentioned in the complaints included email communication between council members and meetings outside city council meetings. The third “crux” of the report involved executive sessions during the time the positions of Judy Brigham, former city administrator, and Ken Hunt, former human resources manager, were being discussed between May 2011 and March 2012. Bowie said the report is an exhaustive investigation of the claims made, and one he took seriously.
The Iola City Council has received what amounts to “a stern warning” from Allen County Attorney Wade Bowie regarding alleged violations of the Kansas Open Meetings Act, or KOMA.
The 27-page report involves several allegations made between late December 2011 and March 2012. These allegations surrounded supposed misconduct in reference to special committee meetings, open meetings and executive sessions that were held by the city council.
During the investigation, Bowie spoke with current city council members who were involved with the meetings during the time — excluding council members Nancy Ford and David Toland, who were not serving at the time.
The first issue regarded “informal committees” made by the council. These committees discussed ordinances, utility reviews and purchasing policy.
According to KOMA, for a meeting to be considered open to the public, it must meet three criteria:
1) Be a gathering, assembly, telephone call or any other medium for interactive communication.
2) Include five or more members of the Iola City Council. The council has eight members plus a mayor.
3) Be a discussion that includes business or affairs of the City of Iola.
Bowie said the committee meetings were held with four members present, in an intentional effort to comply with KOMA regulations.
“Everybody had KOMA on their mind, they were trying to do what KOMA allowed,” Bowie said.
Under the act, public notice is not required for special meetings that do not meet the criteria, unless it is asked for in advance from an interested party. Bowie said that while the committees did not violate KOMA directly, they did seem to “defeat or subvert the purposes of the act.” In other words, he described the committees as a “technical violation,” because they did indeed discuss city affairs, but with less than a majority — meant to circumvent the act.
According to the report, information was distributed via email to the council from a “particular council member.” However, no other council members responded to the email, therefore eliminating the possibilty of “interactive communication.”
There were also no formal meetings held outside of city council chambers, simply coincidental social meetings around Iola. In his report, Bowie said council members went as far as taking separate vehicles to different functions to remain as transparent as possible.
The three criteria for a qualified motion for executive session under KOMA are:
1) A statement of justification for closing the meeting.
2) The subject or subjects to be discussed.
3) The time and place the open meeting shall resume.
Under KOMA, no binding actions can be made during the closed session, and must be made in an open meeting. According to the report, the council members failed to issue a justification statement before moving into a closed meeting:
“The missing component of the motion to move from an open session into a properly called executive session is the ‘justification statement.’”
“This is a problem, and it is tricky,” Bowie said.
The act does require that the justification statement must be “more than a reiteration of the subject matter.” For example, simply stating attorney/client privilege, discussion of non-elected personnel or acquisition of real state as justification for a closed session, is not sufficient.
He said the council’s actions were in an effort to comply with KOMA, but technically missing an extra step in the process of entering an executive session. The council unknowingly made the technical violation, and did not mean to subvert the KOMA regulations.
The other complaint considered whether encouraging a certain vote in executive session is legal. During the Brigham investigation, council members were “encouraged to take a unanimous vote on the termination of her employment,” Bowie said in his report.
Under the Kansas Court of Appeals, it is legal to achieve a consensus during an executive session, which Bowie said was done in this particular case.
“Hopefully everyone can see that I put a lot of time and effort into this,” he said.
Bowie completed the report with the help of the council members involved with the investigation. The Attorney General’s office was aware of the investigation as well. He said the members made every effort to be as compliant and open as possible.
“They didn’t have to cooperate, they could have shown up with lawyers,” Bowie said.
Following the report, he recommended further education regarding KOMA for the current city council members. He said the act is complicated, and oftentimes there are “different interpretations” when the transition from KOMA training to real-world application is made.
During the investigation, he said no normal operations were affected in the Allen County Attorney’s office, and any criminal case took precedence over the report. However, he said it was his duty to the public to make sure any complaint is investigated thoroughly.
All in all, Bowie said it is important to remember the “spirit of KOMA” when considering the actions of the Iola City Council. The purpose of the act is took keep government bodies transparent to the public, and hold them accountable in all circumstances.
He summed up his findings with this statement:
“I cannot find that the members of the Iola City Council knowingly and intentionally violated KOMA. Although I do share some of the concerns raised by the complaints over the manner in which the Iola City Council at times appeared to operate ‘carelessly’ of KOMA.
Analysis: KOMA report a stern warning for council
