Contractual status between FHCHC, Lyon County allows Health Center board to close meetings to media Featured

Contractual status between FHCHC, Lyon County allows Health Center board to close meetings to media KVOE News file photo

Earlier this year, the Flint Hills Community Health Center decided to close its meetings to the public. That step was apparently allowable under Kansas law, based on the current contractual relationship between the Health Center and Lyon County.


The Health Center's Board of Directors voted in March to close its monthly board meetings. At the time, the board was the only Federally Qualified Health Center in Kansas to have open meetings. Chief Executive Officer Renee Hively says guidance from the federal Health Resources and Services Administration on the topic had actually developed two years ago.

In a news release Thursday, Health Center Board of Directors attorney Monte Miller referenced the agency's 2014 contract with Lyon County making the Health Center an independent contractor for the county as the reason Flint Hills Community Health Center is immune from the Kansas Open Meetings Act. Citing Murray v. Palmgren, which determines whether entities are subject to the Kansas Open Meetings Act, Miller says the entity "must be part of a governmental entity at the state or local level, whether it is the governing body or some subordinate group" -- and as an independent contractor, the Health Center is no longer considered a governmental entity.

Miller also references Memorial Hospital Association v. Knutson, which says there are two types of entities that are not subject to open meetings law: those that are advisory with no decision-making authority and those that are basically independent entities that have some connection by contract.

The news release and backing information from the Health Center followed the board's meeting Tuesday, where an Emporia Gazette reporter was not allowed in the meeting. At that time, Miller told the reporter the board was not subject to KOMA.

After reading the contract between the Health Center and Lyon County, Max Kautsch, the Kansas Association of Broadcasters' legal expert for open meetings, says the Health Center's argument is valid. Kautsch said a nonprofit agency can keep its meetings closed -- even though it receives $450,000 per year from the county.

Having said that, Kautsch tells KVOE News there is a counterweight to the Health Center's argument.

 

County Commission Chair Rollie Martin says the pre-2014 arrangement had the county appropriating money to the Health Center, usually at or more than $600,000 per year. The Health Center could use that money as it saw fit, and the county decided to move towards a contract so there was more transparency in tracking county dollars. Martin says the status of open board meetings was never discussed during those negotiations.

The Health Center Board of Directors originally discussed closing its monthly meetings last fall, and Hively says board chair Teresa Briggs surveyed all its stakeholders on whether to close its meetings before making its final decision. County Commissioner Dan Slater says there were automatic concerns for the commission and for the board's legal counsel, Marc Goodman.

Slater says the Health Center's answer continued the county's reservations about the change.

 

The timing of the first attempt came in September, shortly before prior director Phillip Davis and the Health Center parted ways and after a nearly $300,000 net loss was reported in August. The reasons behind Davis' departure were never released, although the release says there was a "diminution" or reduction of financial position from 2012 through 2017 during Davis' tenure. The release says the Health Center's financial position has "substantially improved" as part of its so-called turnaround plan.

Hively says the Health Center mails and/or emails its monthly agenda to news media. It also has quarterly meetings with Lyon County commissioners to provide a verbal and financial report.

 

Kautsch, for his part, says the Health Center-Lyon County relationship could signal a new path forward for other nonprofit entities doing business with municipal or county governments.

News release from the Flint Hills Community Health Center

In response to the recent Emporia Gazette article, Flint Hills Community Health Center provides the following facts:

In the past, Flint Hills Community Health Center had also served as the Lyon County Health Department, which was addressed in Kansas Attorney General Opinion 2003-25.

Then in 2014, Lyon County Commissioners and Flint Hills Community Health Center restructured their previous arrangements for performance of the Lyon County Health Department duties, and entered a new, independent contractor arrangement, severing the previous integrated structure.

As a result, Flint Hills Community Health Center, Inc., is no longer an instrumentality of Lyon County, Kansas, and since then been functioning as an independent contractor under the 2014 contract. It no longer meets the criteria for the Open Meetings Act, specifically the third of the following five criteria, based upon the case law Murray v. Palmgren, 231 Kan. 524, 535 (1982) to determine whether an entity is subject to the Kansas Open Meetings Act:

“First the group of people meeting together must be a 'body or agency' within the meaning of the Act. Second, the group must have legislative or administrative powers or at least be legislative or administrative in its method of conduct. Third, the body must be part of a governmental entity at the state or local level, whether it is the governing body or some subordinate group. Fourth, it must receive or expend public funds or be a subordinate group of a body subject to the Act.
Finally, it must be supported in whole or in part by public funds or be a subordinate group of a body which is so financed.”, and

Memorial Hospital Association. Inc. v. Knutson, 239 Kan. 663, 67 l (1986), which clarifies that:

"Courts have found two types of entities, whatever form they may take, which are not subject to the open meetings laws. (1) those which are merely advisory and have no decision-making authority, and (2) those which are basically independent entities which have some connection, by contract."

As to the financial transparency of the contract with Lyon County, Flint Hills Community Health Center provides a full financial accounting of its use of local tax funds to the Board of County Commissioners on a quarterly basis. The dates of these presentations are posted on the Lyon County Commissioner’s meeting agenda, and the meetings are open to the public.

There is no “missing money” within the operation of Flint Hills Community Health Center. There was a diminution of financial position from 2012 through 2017 under the leadership of the previous Executive Director / CEO. Significant events contributing to this were the addition of the Eureka and Madison Clinics.

However, since November, 2017, the financial position has substantially improved as a result of the implementation of the Turnaround plan. It is a priority of Flint Hills Community Health Center is to assure that the organization remains financially secure and meet all regulatory, legal and funder requirements are met.

And contrary to the assertion of the Emporia Gazette reporter, there is no lock on the door to the meeting room!

Links to additional information

2017 Kansas statute on definition of public meeting

2017 Kansas statute on public meeting procedures

2017 Kansas statute on public records

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