The Kansas State Fair Board has been using a group chat for the past two years to communicate with its members during the fair.
While the conversations were “inconsequential,” State Fair general manager Robin Jennison said, he acknowledged its use is likely a violation of the Kansas Open Meeting Act.
Max Kautsch, an attorney who advises for the Kansas Press Association, said use of such an app or group chat is clearly a violation of the law.
“It’s a classic example of why the Open Meeting law exists and is interpreted the way it is: to prevent a body from doing the business of the body behind the public’s back, which is what is happening here,” Kautsch said.
Though The News requested by email Wednesday that the board discontinue using the chat, Jennison said the board did continue to use it through the fair — and probably will again next year.
To comply with the law, however, he may recommend the board offer to allow the media to join the group next year, he said.
“Apparently they all like it,” Jennison said of the phone app. “I don’t. It blows up my phone with a bunch of stuff. I’m guessing they’ll probably continue to do it ... It’s something before next year we’ll need to check with AnnLouise.”
Jennison was referring to AnnLouise Fitzgerald, the Assistant Kansas Attorney General assigned as a legal adviser to the fair.
She was at the Fair Board meeting on Tuesday, Sept. 10. When asked by a board member about Open Meeting training, she said she usually offers a brief course to new members when they meet in Topeka.
Her appearance, however, was before The News learned about the group chat.
Jennison said he was unsure if Fitzgerald was aware of its use, though she traveled the grounds with board chairwoman Virginia Crossland-Macha, who frequently used the system.
“Obviously, if any texting were going on, she’d have known about it,” he said.
The News attempted to reach Fitzgerald but was transferred to the A.G.’s press secretary, who did not immediately return a call.
However, Jennison said, Fitzgerald did suggest — while meeting with him to discuss redrafting the fair board’s bylaws — that the Fair Board should seek an exemption from the Kansas Legislature to suspend Open Meeting rules for the board during the fair.
The suggestion was not because of the group chat but because of how often small groups of fair board members meet on the grounds and likely discuss State Fair business.
Most Fair Board members attend events multiple times a day during the entire 10-day run of the fair. The concern, Jennison said, is that the board is violating the law that prohibits chain or serial meetings.
A couple of members might discuss something, which itself is not a violation of the law, but then consider the same issue with others at a different event or location on the grounds, gathering opinions of the majority.
The Legislature substantially changed the Kansas Open Meetings Act in 2008, when the language was changed from “a majority of a quorum” to merely requiring a “quorum of the board” be present to constitute a meeting.
It also added regulations at that time prohibiting serial meetings, including the use of electronic communication. The amendment was primarily in response to chain email communications, but the use of instant messaging also would qualify.
A Kansas appellate court has held that even informal discussions before, after or during recesses of a public meeting are subject to the requirements of the open meetings law.
Kautsch said the board could only use a group chat if it gave notice to every person who has requested notice of board meetings “before each chat happens and in a reasonable time.”
“To comply, I can imagine them posting it on the Fair Board’s website ‘we’re going to do a group chat at this time,’ but it has to be an open meeting,” he said.
The simple solution, of course, is for board members not to discuss state fair business outside a formal meeting.
“I don’t think I had a concern about it,” Jennison said. “I know technically they probably shouldn’t be doing it. But it’s pretty tough to keep the board apart the whole time at the fair.”
Jennison said he wouldn't likely pursue an exemption this year.
“I have more important stuff to pursue,” he said.