School board rushes special meeting for policy change to clear wrestler for tournament. Did it violate the Kansas Open Meetings Act?

(The Sentinel) – The Newton USD 373 Board of Education appears to have violated the Kansas Open Meetings Act (KOMA) during a special meeting called on Feb. 22, 2023.

The meeting was called prior to the Kansas 5A state wrestling tournament in order to amend the district’s “Railer Way” code of conduct.

Coming out of executive session, the board voted 4-2 to “amend our code of conduct [and] add language that states every situation is different and administrators reserve the right to deviate from the code of conduct when deemed appropriate.”

According to the Newton Kansan, the board convened the meeting in response to a video showing a student-athlete using “vapes” in a hallway at Newton High School — the use of which is a violation of district policy.

The student in question was then declared ineligible for the state tournament.

According to the Kansan, about six hours later, board members received a notice of a special meeting.

There were, however, some issues with that notice.

Potential KOMA violations

While any board member can request a special meeting, each member must be given a two-day notice unless waivers of notice can be obtained.

The problem is that only four of the seven members agreed to sign the notice, which the district’s attorney said was insufficient.

John Robb, a partner at Somers, Robb & Robb, who represents the Newton school district, said unless all members signed the waiver, the meeting could not be held legally.

“That is to prevent the majority from quickly ramming something through on the minority on short notice,” the Kansan reported Robb said via speakerphone to USD 373 Superintendent Fred Van Ranken and Board President Mallory Morton during a sidebar in the hallway of McKinley administrative Center shortly after the special meeting was called to order.

However, a call to the Kansas Association of School Boards was made, and KASB attorneys said so long as four members were present — and had signed the waivers— the meeting could proceed.

The board then went into executive session, where it reportedly discussed the change of policy — which is not one of the acceptable reasons for going into executive session. Nor can any action be taken on anything discussed in an executive session unless it is then discussed in an open session.

At least one board member left as a result of the KOMA violation.

The Kansan reported that board member Breanna Haynes said policy discussion occurred during the executive session, and she is seeking legal counsel from the Kansas Association of School Boards (KASB).

“I tried to put a stop to that [policy discussion during an executive session] twice, and that did not happen. That is why I left,” Haynes said, according to the Kansan.

The Sentinel asked KASB to explain why it believes the board did not violate KOMA, but no reply was provided.

Extenuating circumstances do not justify ignoring the law

At the regular board meeting on Feb. 27, the topic came up again, and several board members suggested there were extenuating circumstances that made the exception warranted — namely that the people who had sent in the video had had it for an extended period and waited until right before the tournament to release it in a way as to do as much damage as possible to the wrestler.

While that may be so, the board still appears to have violated KOMA and acted in an arbitrary manner. Something Max Kautsch, a media attorney based in Lawrence and president of the Kansas Coalition for Open Government, found simply unacceptable.

“The school board’s actions mean that authoritarianism, which relies on arbitrariness to thwart the rule of law, is one up on democracy unless and until the district chooses, or is compelled, to come to its senses,” Kautsch said in an emailed statement. “The school board revised a policy despite clear opposition from both its attorney and at least one of its own members, leading the community at large to reasonably believe that the revision was developed in violation of KOMA.  Therefore, a strong argument exists that the revised policy is voidable by either the county attorney or the attorney general under the Kansas Open Meetings Act. In other words, either of those agencies have the power to turn back the clock to before the meeting where the revision was adopted and make it as if it never existed.

“Moreover, Kansas law gives any resident within the school district the ability to file an open meetings complaint against the board with either the county attorney or the attorney general.  Such a person could also file a KOMA case against the district in court.”

Moreover, Kautsch said, the board needs to rescind the policy and issue an apology.

“The previous policy that would have prohibited his participation should be reinstated, and the district should disclose in writing to the state high school athletics association that the student’s participation was in violation of policy because the revised policy should never have been effective,” he said. “Sympathy is also due to any students from other high schools who wrestled the student and lost.

“It’s not too late for the board to take this opportunity to begin the process of restoring its credibility in the community.  Each day that goes by with the revised policy still in effect decreases public trust.”