Can a Kansas public board keep a member out of a closed-door legal meeting if that member is threatening to sue the board?

Plain-English summary

Counsel for Southwest Kansas Groundwater Management District No. 3 asked whether the district's board could exclude two of its own directors from an executive session called to discuss a legal matter, when those same directors, acting as landowners, had joined a petition to remove Hamilton County from the district's boundaries and had credibly threatened further litigation against the board. The board wanted to consult privately with its attorney about the petition and the threatened lawsuit, but the two directors in question were themselves the parties threatening that lawsuit.

The Attorney General concluded the board could exclude them, though the Kansas Open Meetings Act (KOMA) does not squarely address this scenario. Neither KOMA nor the Kansas Groundwater Management District Act give individual board members an absolute right to attend every executive session, and KOMA already contemplates that not every member will be present for every meeting, since only a majority is needed to conduct business. Most importantly, an attorney-client executive session only works if the underlying discussion is actually privileged; letting an adversarial party, here, directors who are effectively suing the board, sit in on that conversation would waive the privilege and defeat the entire purpose of the closed session, exposing the board to a KOMA violation for holding an executive session without a valid legal basis. The opinion also noted the directors were acting in their capacity as landowners, not as directors, when they signed the petition, a distinction at least one out-of-state court has relied on in a similar ruling. The opinion was careful to limit its conclusion narrowly: a board may exclude a member specifically threatening or pursuing litigation against it from a session addressing that litigation, not more broadly whenever a board simply disagrees with one of its own members.

What this means for you

Boards of groundwater management districts and other public bodies subject to KOMA: the opinion holds you may exclude a fellow board member from an executive session convened to consult with your attorney about litigation that member is personally threatening or pursuing against the body, because that member's presence would waive attorney-client privilege and undercut the legal basis for the closed session.

Public body attorneys advising on executive session practice: the opinion confirms this exclusion is grounded in protecting the privilege itself, not in any general power to exclude disfavored members, so document carefully that the excluded member is an adverse party on the specific matter being discussed.

Board members who disagree with their colleagues but are not adverse parties: the opinion is explicit that its holding does not extend to excluding a member simply because the board disagrees with them; exclusion is tied specifically to the litigation-adversity scenario described.

Common questions

Does every member of a Kansas public body have an absolute right to attend every executive session?
Not according to the opinion; neither KOMA nor the statute governing groundwater districts affirmatively grants that right, and the opinion notes this specific question had never been squarely decided in Kansas before.

Why does it matter whether the directors were acting as landowners or as directors when they filed the petition?
Because the opinion found it persuasive that the directors signed the boundary-removal petition in their capacity as landowners rather than as board members, drawing on an out-of-state case that relied on a similar distinction to justify excluding a board member who had personally sued the body.

Can a board exclude a member from an executive session just because they don't trust that member?
No. The opinion stresses its conclusion is limited to members who have threatened or initiated litigation against the body on the specific matter being discussed in that executive session; it does not endorse a general power to exclude a member the board disagrees with.

Background and statutory framework

The Kansas Groundwater Management District Act, K.S.A. 82a-1020 through 82a-1042, authorizes locally governed groundwater management districts (GMDs) with significant powers, including buying and selling water rights, eminent domain, and adjusting district boundaries, run by an elected board of directors serving three-year terms. As a statutorily created governmental body, a GMD's board is subject to the Kansas Open Meetings Act, K.S.A. 75-4317 through 75-4320f, which generally requires public meetings but allows closed executive sessions for limited purposes, including consultation with the body's attorney on matters that would be privileged under the attorney-client relationship, per K.S.A. 75-4319(b)(2).

The opinion reasoned from the structure of both statutes: because KOMA requires only a majority of members present to hold a meeting, and because an attorney-client executive session is only valid if the underlying communication remains privileged, allowing a director who is personally an adverse party in threatened litigation to sit in on that consultation would waive the privilege and strip the executive session of its legal justification, exposing the board to potential KOMA violations under K.S.A. 75-4320's penalty provisions. The opinion drew support from a Washington appellate decision, Hartstene Pointe Maintenance Ass'n v. Diehl, which upheld excluding a board member who had personally sued the body from closed sessions concerning that litigation.

Citations and references

Statutes:
- K.S.A. 75-4317; 75-4318(a); 75-4319(b)(2); 75-4320
- K.S.A. 82a-1020; 82a-1021 (incl. (a)(4), (a)(5)); 82a-1027 (incl. (a), (c)); 82a-1028(e); 82a-1033; 82a-1039

Cases:
- State ex rel. Stephan v. Seward County Board of Commissioners, 254 Kan. 446, 866 P.2d 1024 (1994)
- State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001)
- Hartstene Pointe Maintenance Ass'n v. Diehl, 2015 WL 3884264 (Wash. App. 2015)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10506/638460984374370000

Original opinion text

October 18, 2023

ATTORNEY GENERAL OPINION NO. 2023-10

Mr. Thomas A. Adrian
Adrian & Pankratz
301 N. Main, Suite 400
Newton, KS 67114

Re: Waters and Watercourses—Groundwater Management Districts—
Legislative Declaration; Definitions; Board of Directors; Terms of
Members; Vote for Actions; District Powers; Extension or Reduction of
District Territory by Chief Engineer; No Limitation of Authority of
Chief Engineer

        State Departments; Public Officers and Employees—Public Officers
        and Employees—Open Public Meetings—Open Meetings Declared
        Policy of State; Citation of Act; Meetings of State and Subdivisions
        Open to Public; Closed or Executive Meetings; Conditions; Authorized
        Subjects for Discussion

Synopsis: Members of a public body may exclude other members of the body who
have threatened litigation against the body from an executive session
held to consult with the body's attorney about the potential litigation.
Cited herein: K.S.A. 75-4317; 75-4318; 75-4319; 82a-1020; 82a-1021;
82a-1027; 82a-1028; 82a-1033; 82a-1039.

                        *            *            *

Dear Mr. Adrian:

As legal counsel for the Board of Directors of Southwest Kansas Groundwater
Management District No. 3 (GMD3), you ask whether the Board may exclude from
an executive session certain directors who have filed a petition to alter the GMD's
boundaries and threatened future litigation against the Board. The justification for
the executive session would be to consult with you about the directors' petition and
possible additional litigation. Under these circumstances, we conclude the Board
can exclude these directors.

To answer your question, we must interpret various statutes. Statutory
interpretation invariably begins with the text of the statute, giving common words
their ordinary, everyday meanings. Tools of statutory interpretation or legislative
history may be consulted only when the statute is ambiguous.1

In 1972, the Legislature passed the Kansas Groundwater Management District Act
(GMD Act), K.S.A. 82a-1020 through 82a-1042, authorizing the formation of GMDs,
with the aim of giving local water users a measure of authority in regulating
groundwater.2 GMDs are locally defined public entities that cover one or more
aquifers for the purpose of managing groundwater.3 They have significant
authority. For example, they can buy and sell water rights and land; acquire land
and interest in land by eminent domain; construct, operate, and maintain water
projects; levy water user charges and land assessments; and expand or reduce their
boundaries.4

GMDs are governed by an elected board of directors, each of whom serves a term of
three years.5 The number of directors is determined by the organic petition forming
the GMD.6 Directors are elected by "eligible voters," which are people who either
(1) own at least forty acres of land outside city limits or (2) annually withdraw at
least one acre-foot of groundwater from within the GMD.7

GMD3 is situated in southwest Kansas, and it encompasses at least a portion of
twelve counties that sit atop the Ogallala-High Plains Aquifer.8 Fifteen directors
compose its Board.9

1 Bruce v. Kelly, 316 Kan. 218, 224, 514 P.3d 1007 (2022).
2 K.S.A. 82a-1020; see K.S.A. 82a-1039.
3 K.S.A. 82a-1021(a)(4).
4 K.S.A. 82a-1028(e)-(h), (j). For an overview of GMDs, see John C. Peck, Groundwater Management

in Kansas: A Brief History and Assessment, Kan. J.L. & Pub. Policy 441 (Spring 2006).
5 K.S.A. 82a-1027(a).
6 Id.
7 K.S.A. 82a-1021(a)(5).
8 https://perma.cc/E6W5-M7GP.
9 https://perma.cc/9L3J-VKPF.

As a governmental body created by statute, GMDs are subject to the Kansas Open
Meetings Act (KOMA), K.S.A. 75-4317 through 75-4320f,10 which generally requires
meetings of governmental bodies to be open to the public.11 At the same time, it
permits public bodies to enter into closed executive sessions for specific purposes,
one of which is "for consultation with an attorney for the public body or agency
which would be deemed privileged in the attorney-client relationship."12

In your letter, you explain that two directors who are also landowners have joined
other landowners in filing a petition to have Hamilton County removed from
GMD3, a procedure governed by statute.13 The petition, which you provided, is
signed by the landowners, including the two directors in their capacity as
landowners. You also believe the directors have credibly threatened litigation if
Hamilton County is not permitted to withdraw from GMD3.

Your question is whether a public body may exclude these directors from an
executive session held with you to discuss the petition and possible future litigation.
Stated differently, your question is whether all members of a public body retain the
unfettered right to attend all executive sessions of the body.

Our office has previously said only members of a public body have a "right" to
attend an executive session, but these statements were made while analyzing
whether non-members had the authority to attend an executive session.14 Our
research reveals that this question has never been squarely presented in Kansas.

One commentator has recognized that whether a hostile board member may be
excluded from an executive session is a reoccurring and "hotly debated" issue among
public bodies, but KOMA is silent on the matter.15 In her opinion, "any rights
possessed by the aggrieved board member being excluded from executive sessions,
or other meetings for that matter, must be enforced using authority other than the
KOMA."16 We largely agree.

10 See K.S.A. 75-4318(a).
11 This statutory scheme was enacted for the public benefit, so courts construe it broadly to fulfill this

purpose. State ex rel. Stephan v. Seward County Board of Commissioners, 254 Kan. 446, 448, 866
P.2d 1024 (1994).
12 K.S.A. 75-4319(b)(2).
13 K.S.A. 82a-1033.
14 Att'y Gen. Op. 1987-170 (K.S.A. 19-304 did not require county clerk to attend executive sessions of

the board of county commissioners); Att'y Gen. Op. 1986-143 (members of advisory board did not
have right to attend executive sessions held by board of education).
15 Theresa Marcel Nuckolls, Kansas Sunshine Law; How Bright Does It Shine Now? The Kansas

Open Meetings Act, J.K.B.A. 34, 43 (June/July 2003).
16 Id.

KOMA does not directly address this situation, but this is unsurprising because its
stated focus is on the protection of the public, not the protection of members of a
public body. Nonetheless, KOMA's language implies members of a public body may
be excluded from an executive session under these circumstances.17

First, neither KOMA nor the GMD Act affirmatively grant individual board
members the absolute right to be present at every executive session. Like courts, we
"will not read the statute to add something not readily found in it."18

Second, while it requires a majority of the members to be present to constitute a
meeting, KOMA does not mandate that all members of the body be present to form
a meeting. So it is fair to say the Legislature contemplated at least some situations
in which a minority of members would be absent from a meeting. And under the
GMD Act, it takes only a majority of voting directors to bind a GMD.19

Third, to invoke an attorney-client executive session, the ensuing discussion must
be privileged under the attorney-client relationship.20 The presence of an opposing
party at the meeting waives the privilege, thereby defeating the justification for the
executive session and placing the public body at risk of violating KOMA.21
Construing these provisions in pari materia with the view of bringing them into
workable harmony, we conclude a public body may exclude a member of that body
under the circumstances you have outlined.22 Otherwise, KOMA would permit
members to effectively paralyze the public body by insisting they be privy to
confidential communications.

We also find it persuasive that the directors appear to be acting in their capacity as
landowners rather than directors. At least one court has relied on this distinction
when holding that a member of a public body was properly excluded from a closed
executive session after he initiated litigation against the body in his personal
capacity.23

17 See K.S.A. 75-4317.
18 Graham v. Dokter Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007).
19 K.S.A. 82a-1027(c).
20 K.S.A. 75-4319(b)(2).
21 See State ex rel. Stovall v. Meneley, 271 Kan. 355, 375, 22 P.3d 124 (2001); Attorney General

Opinion 1997-40; Attorney General Opinion 82-247; see also K.S.A. 75-4320 (penalties for knowingly
violating KOMA). Of course, ethical considerations about maintaining confidential information are
implicated, but we abstain from opining on such matters. See generally K.R.P.C. 1.6 (2023 Kan. S.
Ct. R. 336).
22 See Roe v. Phillips County Hospital, 317 Kan. 1, 5, 522 P.3d 277 (2023) (courts construe statutes in

pari materia even when the language of the statute is clear).
23 Hartstene Pointe Maintenance Ass'n v. Diehl, No. 45739-3-II, 2015 WL 3884264, at *4-5 (Wash.

App. June 23, 2015).

In sum, we conclude a public body may exclude members who have threatened
litigation against the body from an executive session held to discuss the possible
litigation with its attorney. By reaching this conclusion we stress that our opinion is
limited to these circumstances; we do not suggest a public body may generally
exclude a present member from an executive session.

                                    Sincerely,

                                    /s/ Kris W. Kobach

                                    Kris W. Kobach
                                    Kansas Attorney General

                                    /s/ Kurtis K. Wiard

                                    Kurtis K. Wiard
                                    Assistant Solicitor General