Health Center reopening monthly board meetings after County Attorney lists KOMA violation Featured

Health Center reopening monthly board meetings after County Attorney lists KOMA violation KVOE News file photo

In March, the Flint Hills Community Health Center closed its monthly board meetings to the public -- a decision based in large part on an interpretation of the independent contractor relationship between the Health Center and Lyon County. On Wednesday, Lyon County Attorney Marc Goodman said that was a mistake and a violation of the Kansas Open Meetings Act.

 

The Health Center has been an independent contractor with Lyon County since 2014, receiving $450,000 per year for a wide range of health services provided to county residents. Board chair Teresa Briggs tells KVOE News the decision wasn't what Health Center board members or administrators expected, but the Health Center will comply with Goodman's findings.

 

Chief Executive Officer Renee Hively says the community may have some misperceptions about the Health Center's role areawide.

 

In May, Health Center board attorney Monte Miller cited two cases which determine whether entities are subject to the state's Open Meetings Act. According to Miller, 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 a governmental entity. Miller also said 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.

Goodman, meanwhile, said it was his opinion those cases did not give the Health Center legal standing to close the board meetings.

Miller has declined comment, directing KVOE News to Hively and Miller in that regard.

The Health Center's Board of Directors originally discussed closing its monthly meetings last fall after guidance from the Health Resources and Services Administration and a survey of other Federally Qualified Health Centers in Kansas, which all had closed meetings. The Health Center utlimately closed the meetings in March, but issued a formal news release in May when an Emporia Gazette reporter tried to attend a board meeting but was not allowed inside.

The Health Center's next board meeting will be July 24, and both Briggs and Hively say it will be open to the media and the public. Goodman says opening the board meetings will not impact the Health Center's ability to hold executive or closed sessions during their meetings to discuss confidential information.

Click here for KVOE News' prior coverage of this story, including the Health Center's news release on its legal research into the matter.


Legal opinion from Lyon County Attorney Marc Goodman

LEGAL OPINION LETTER

July 10, 2018

Mr. Chris Walker
The Emporia Gazette
517 Merchant St
Emporia, KS 66801

RE: KOMA Complaint

 

Dear Mr. Walker:

On May 23, 2018, The Emporia Gazette filed an official open meetings complaint against the Flint Hills Community Health Center (FHCHC), alleging a violation of the Kansas Open Meetings Act, KSA 75—4317, et seq. 

Your letter stated that the Gazette received notice of a board meeting of FHCHC on May 22, 2018. On May 22, 2018, a Gazette reporter (Adam Blake) attempted to attend the meeting. Mr. Blake was refused attendance citing that the Kansas Open Meetings Act did not apply to it.

Based upon that refusal, The Emporia Gazette filed an open meetings complaint against the FHCHC.

The Kansas Attorney General’s Office and the local District or County Attorney have concurrent jurisdiction to investigate Open Meetings violations. (See KSA 75-4320) However, it is the practice of the Kansas Attorney General's Office to refer any Kansas Open Records or Open Meetings complaints to the appropriate County or District Attorney for investigation and resolution. As such, our office has taken on the responsibility of investigating and determining whether the Flint Hills Community Health Center is: (1) subject to the Kansas Open Meetings Act, and if they are subject to the Act, then; (2) whether they were in violation of the Kansas Open Meetings Act by refusing admittance of the reporter to the meeting held on May 22, 2018, pursuant to KSA 75—4320b.

Below is our opinion after research and fact analysis of the Kansas Open Meetings Act.

LEGAL FRAMEWORK

A. Kansas Open Meetings Act Generally

Under K.S.A. 75—4318(a), the Kansas Open Meetings Act (KOMA) is described as applying to:

“all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees,
subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds..."

However, KOMA has been limited in its scope and applicability. KSA 75-4318 has been interpreted as manifesting a two—part test which must be met in order for KOMA to apply to an entity. Under KSA. 75-4318, in order for a body to be subject to KOMA the body must ”1) either be a legislative or administrative agency of the state or one of its political or taxing subdivisions or subordinate to such a body; and 2) receive, expend or is supported in whole or in part by public funds, or, in the case of subordinate groups, has a parent or controlling body which is so supported.”

The first-prong requires the entity to be public in nature in order to be covered by KOMA. The terms "legislative" and "administrative” imply that the body must necessarily be acting in some governmental capacity. There are several Attorney General opinions stating that private entities whose only relationship to government is ”contractual are not subject to KOMA.

The second-prong has been expanded to include a ”subordinate group" having a parent or controlling body which receives and expends public funds will also be subject to KOMA. [See State ex rel. Murray v. Palmgren, 231 Kan. 524, 535 (1982)]. Therefore, an entity can be subject to KOMA when only the parent group of the entity receives or expends public funds regardless of whether the entity itself does or does not. Id.

B. KOMA and Private Entities

Additionally, a private, nonprofit organization may be subject to KOMA if it 1) receives public funds in its operations, and 2) acts as a governmental agency in providing services to the public. (Emphasis added.) Receipt of public funds alone will not subject an entity to KOMA. In order to determine whether an entity is an “administrative agency" of the state, prior Kansas Attorney General Opinions have identified four criteria to be used:

1) If the agency has the authority to make governmental decisions and act for the state, it is covered by an open meetings law. If it only collects information, makes recommendations or renders advice, it is not. McLarty v. Board of Regents, 231 Ga. 22, 200 S.E.Zd 117, 119 (1973).

2) Does the agency have independent authority in the exercise of its functions? Soucie v, David, 440 F.2d. 1067 (D.C. Cir. 1971).

3) Is the agency subject to governmental audits or otherwise have its business procedures supervised? Recap v. Indiek, 539 F. 2d 174, (D.C. Cir, 1976)

4) Finally, one court has defined 'governmental agency' to include corporate instrumentalities that accomplish public ends, both governmental and proprietary. Ratan Public Service Co. v. Hobbes, 76 NM. 535, 417 F. 2d 32 (1966).” Attorney General Opinions No. 84-10 pp. 2-3'; 79-219 pp. 3, 4; 79-284 p.3. [The Kansas Supreme Court essentially struck this last test in Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663 (1986).]

In cases where it has been held that the non-profit corporation was not subject to KOMA, it was found to be conclusive that:

1) the corporation, which was private and not-for-profit, did not administer a government program for which state or local government would otherwise be responsible; 

2) the corporate directors were not appointed by a governmental body; and

3) the county exercised no control over the activities of the corporation, although the corporation did comply with necessary federal and state regulations in order to qualify for public funds. (See, Kansas Attorney General Opinion 85-49 page 5.)

"WhiIe the amount of public funds which an agency receives is clearly one factor to consider, also relevant are legal agreements between the corporation and a governmental body, or legal action taken by the body without which the corporation would be unable to exist." (See Kansas Attorney General Opinion 85—49, page 6). Ultimately, in order for KOMA to apply, there must be ”some degree of governmental input in creating the entity or some on-going governmental control over the entity, as opposed to general regulation of the type of business in question.” (See Kansas Attorney General Opinion 04-34).

C. KOMA and Entities Not Subject

Moreover, courts have carved out two types of entities which are not subject to KOMA: ”(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 or other tie to a government entity, but are not actually created by some form of government action.” [Mem'l Hosp. Ass’n, inc. v. Knutson, 239 Kan. 663, 671, 722 P.2d 1093, 1099 (1986)]. Further, Kansas Attorney General Opinion 80-239 noted "KOMA has not been interpreted to apply to truly private entities whose association with the state or its political and taxing subdivisions is based on 'arms-length’ contractual obligations."

D. Relevant Kansas statutes

KSA 65-201 states: the county commissioners of the county shall act as county board of health, and shall appoint a health officer, and in KSA 65-202 lists various duties and requirements of the health officer. 

SA 19-212 Eleventh provides that the county commission shall ”contract for the protection and promotion of the public health and welfare."

The County Commission contracted with the FHCHC that they perform duties in furtherance of protecting and promoting public health and welfare.

LEGAL ANALYSIS

A. Case Analysis

The ruling in Knutson can be distinguished based on factual grounds. The Kansas Supreme Court held in Knutson the Hospital Association was not subject to KOMA as it was an independent entity not subject to any governmental control. [Mem'l Hosp. Ass'n, Inc. v. Knutson, 239 Kan. 663, 672, 722 P.2d 1093, 1100 (1986)]. The holding was based on the fact that the Hospital Association was not advisory to the county commissioners and had no authority to make decisions which involve a community resource. id. Further, the Hospital Association was not created as an "alter ego” of the commission to carry out duties of which the commission was responsible for. id. Additionally, the public funding the Hospital Association received was used only for maintenance and improvements. id. Based on those facts the Court held, ”where the board leases the hospital property to another, the lessee is not subject to the open meetings requirement of the KOMA if the lessee: 1) has no governmental decision-making authority to expend public funds, and 2) is an independent entity which by contract agrees to provide hospital services under a lease of hospital property from a board of trustees."

However, in Kansas Attorney General Opinion 87-188, it was determined Cowley County Developmental Services (CCDS) and Project Independence, which were private, nonprofit organizations, were administrative bodies and thus subject to KOMA. The conclusion was based on the following facts, they were required to meet guidelines set by SRS, SRS must approve the budget, and Project independence was required to submit program reports. (see, p. 6) Additionally, Project Independence received public funds which were directly used to provide public services for the mentally handicapped. id. 

Further, in Kansas Attorney General Opinion 94-111, it was determined Southwest Developmental Services, inc. (SDSI), was a nonprofit corporation responsible for providing services for mentally handicapped residents. The Opinion goes on to conclude, 5051 was an
agency of the county and thus the second-prong of the test for KOMA application was satisfied. The conclusion was based on the following facts, ”SDSI is subject to close monitoring by the county in budgetary matters, and by SRS with regard to programs provided.” Further, ”SDSI provides services for the mentally handicapped residents of the county in compliance With the statutes."

Here, the facts more closely resemble those of the Attorney General Opinions than those addressed in the Knutson ruling. While it has been clearly established that KOMA does not apply to an independent entity who is not subject to any governmental control, a private,
nonprofit agency which is deemed to be "administrative” and which receives or expends public funds may nonetheless be subject to KOMA.

B. Prong-one: Receipt of Public Funds in its Operation

Under the facts here, it is indisputable that the Flint Hills Community Health Center (Flint Hills) receives public funding which is expressly to be used for public services. According to the 2014 contract between Lyon County and the Flint Hills, Lyon County pays the Flint Hills a total of $450,000 annually which is distributed under "normal county appropriations procedure.” $250,000 is for public health duties performed and the additional $200,000 is for environmental health. Thus, the first-prong of the test for KOMA application regarding a private entity is satisfied.

C. Prong—Two: Control by the Governmental Agency

Receipt of public funds alone is insufficient for KOMA to apply. In order for the second-prong of the test for KOMA application regarding a private entity to be satisfied, there must be evidence of at least some control by the governmental agency. Though, not expressly addressed in the two-prong test, this factor has been used in determining whether KOMA applies for a private entity.

In analyzing the 2014 contract between the Flint Hills and Lyon County, Lyon County maintained control in several ways. First, in regard to the receipt of public funds, the 2014 contract provides, ”Flint Hills shall provide quarterly reports to Lyon County for all services rendered." This language is indicative of Lyon County maintaining control over the agency as requiring the Flint Hills to provide full financial accounting of its use of the local tax funds, they are being subjected to governmental audits or otherwise having their business procedures supervised.

Secondly, in regard to providing services, the 2014 contract provides, ”Flint Hills, with the approval of Lyon County, shall provide the services of a properly licensed Health Officer...” (Emphasis added.) This language is indicative of Lyon County maintaining control as Flint Hills does not have complete, independent authority in the exercise of its functions. In providing services they are subject to the approval of Lyon County.

Third, under the 2014 contract, Lyon County was responsible for designating the Chief Executive Officer of the Flint Hills as the Health Officer of Lyon County pursuant to K.S.A. § 65-201 et seq. The Health Officer is answerable to Lyon County's Board of Health and is
responsible for supervising health activities within Lyon County and enforcing statutes and ordinances relating to public and environmental health. The County Commissioners act as the Board of Health and the Health Officer is responsible for reporting back to the Commissioners.

This language is indicative of Lyon County maintaining control as the CEO was appointed, by Lyon County, as the county's Health Officer who is answerable to Lyon County for the acts of the agency. This appointment is pursuant to a state statute which requires the
County to provide a board of health and appoint an officer to be advisory to that board. While the corporate director was not specifically appointed by Lyon County, Lyon County nonetheless has some control over the Flint Hills chief officer in their advisory position as Health Officer.

D. Prong-Two: Acting as Governmental Agency or lndependent Authority

Another factor that is used in determining whether a private entity will be subject to KOMA is whether the agency is acting as a governmental agency in providing services or has independent authority to make governmental decisions. Flint Hills does not have complete, independent authority in making decisions as Lyon County maintains at least some level of control as discussed above. However, it does not merely ”collect information, make recommendations, or render advice.” Flint Hills does maintain some level of autonomy in providing its services to the public. Therefore, Flint Hills will be subject to KOMA if it is acting as an administrative or governmental agency in providing services to the public.

By providing services to the public in regard to public and environmental health, Flint Hills is providing programs which would otherwise have to be offered by the State or a governmental subdivision, if they were to be offered at all. ”This would seem to constitute “governmental affairs” of the kind which the Act intended to be open to public scrutiny since the way in which such tax-supported programs are run would be of keen interest to many citizens.” See Attorney General Opinion No. 79-284, p.3. See also Attorney General Opinion No. 87-188.

E. Public Policy Rationale

Lastly, the underlying public policy of KOMA is the premise that the act was enacted for public benefit and as such it is to be construed in favor of the public. See, K.S.A. 75-4317. K.S.A. 75-4317(a) specifically provides that ”meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.” K.S.A. 75-4317 goes on to provide the reasoning for such meetings to be held open to the public as ”a representative government is dependent upon an informed electorate.”  Because of this public policy rationale any exceptions to the Act shall be narrowly construed as well in order to carry out the purpose of the law. See, Murray v. Palmgren, 231 Kan. at 530—532. (1982).

CONCLUSION

It is the opinion of the Lyon County Attorney’s Office that the Flint Hills Community Health Center is subject to the Kansas Open Meetings Act, K.S.A. 75-4317 et seq., based on the foregoing analysis. Moreover, by closing the meetings to the public and by refusing admittance of an Emporia Gazette reporter to the May 22, 2018 meeting, the Flint Hills Community Health Center was in direct violation of the Kansas Open Meetings Act, K.S.A. 75-4320.

Therefore, it is the opinion of the Lyon County Attorney’s Office that the Flint Hills Community Health Center shall re-Open its meetings to the public in order to avoid any further violations of the Open Meetings Act. 

Additionally, pursuant to K.S.A. 75—753, the Lyon County Attorney’s Office will send a report to the Kansas Attorney General's Office regarding such findings.

 

Respectfully,

Marc Goodman

 

Lyon County Attorney

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