Kansas Attorney General Opinion 2014-007

April 1, 2014
ATTORNEY GENERAL OPINION NO. 2014- 07
J.R. Behan, Chairman
Kansas Board of Emergency Medical Services
900 SW Jackson St., Room 1031
Topeka, KS 66612
Re: 	State Departments; Public Officers and Employees–Public Officers and
Employees–Open Meetings Act; Meetings of State and Subdivisions Open
to Public; Exceptions; Closed or Executive Meetings
Statutes; 	Administrative 	Rules 	and 	Regulations 	and 	Procedure–
Administrative Procedure Act–Orders Affecting Licensure; Hearings
Synopsis: 	The Kansas Administrative Procedure Act (KAPA) applies to the activities
of the investigations committee of a state licensing board only to the
extent that the board’s statutes expressly provide that proceedings under
those statutes are governed by the KAPA. 	KAPA proceedings are not
required to be open to observation by the public with the exception of an
evidentiary hearing. Under the KAPA, an agency’s decision is made in an
order that is served on the parties; a public vote is not required.
If 	the 	KAPA 	does 	not 	apply, 	then 	the 	actions 	of 	an 	investigations
committee must be held in accordance with the Kansas Open Meetings
Act 	(KOMA). 	Under 	the 	KOMA, 	the 	investigations 	committee 	of 	a
licensing board may consult with an attorney in a closed or executive
session 	and 	it 	may 	recess 	to 	engage 	in 	quasi-judicial 	deliberations
regarding a decision in a specific case. 	However, all other parts of an
investigative 	or 	disciplinary 	proceeding 	and 	all 	policy 	or 	general
discussions must occur in a public meeting, unless otherwise provided by
law. 	Under the KOMA, binding decisions must be made by a vote in an
open meeting. 	Cited herein: K.S.A. 2013 Supp. 65-6112; 65-6129c; 65-
6132; 65-6133; K.S.A. 75-4317; K.S.A. 2013 Supp. 75-4317a; 75-4318;
75-4319; 77-201; K.S.A. 77-501; K.S.A. 2013 Supp. 77-503; K.S.A. 77-

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Page 2
508; K.S.A. 2013 Supp. 77-511; K.S.A. 77-512; K.S.A. 2013 Supp. 77-
514; 77-523; K.S.A. 77-526.
* 	* 	*
Dear Mr. Behan:
On behalf of the Kansas Board of Emergency Medical Services (KSBEMS), you ask for
our opinion on whether the investigations committee of a professional licensing board
authorized to exercise quasi-judicial powers must conduct its affairs in a meeting open
to the public. 	In your letter, you state that the KSBEMS Investigations Committee
consists of five board members out of a 15-member board, and committee meetings
may include any of the following activities:
 	Staff reports on the status of pending investigations and findings from completed
investigations;
 	Discussions among Investigations Committee members, staff and board counsel
to determine whether probable cause exists to file a disciplinary petition;
 	Investigations Committee member review 	of 	documents 	and 	evidence 	from
investigations 	to 	decide 	whether 	to 	impose 	discipline 	or 	offer 	a 	consent
agreement to resolve the matter in question;
 	Discussion and votes on whether to recommend that the Board adopt policies
regarding investigations and reviews of applications for Board certification; and,
 	Investigations Committee review of applications for certification from applicants
with criminal histories.
Your question involves both the Kansas Open Meetings Act (KOMA) 1 and the Kansas
Administrative 	Procedure 	Act 	(KAPA). 2 Before 	specifically 	addressing 	KSBEMS
investigations, we first review these two acts.
KAPA Overview
The Kansas Administrative Procedure Act provides procedural rights and duties 3 for
decisions made by state agencies. 4 The KAPA applies “only to the extent that other
statutes expressly provide that the provisions of [KAPA] govern proceedings under
1 K.S.A. 75-4317 et seq.
2 K.S.A. 77-501 et seq.
3 K.S.A. 2013 Supp. 77-503(b).
4 Denning v. Johnson County Sheriff’s Civil Service Board, 46 Kan. App. 2d 688, 702 (2011) (the
definition of state agency under the KAPA expressly excludes “political subdivisions of the state”) and
Attorney General Opinion No. 95-97 (city and county governments are not a state agency under the
KAPA).

J.R. Behan
Page 3
those statutes.”5 In other words, the KAPA does not apply to proceedings before a
state licensing board unless a statute specifies that such proceedings must be held in
accordance with the KAPA.
Under the KAPA, a licensing agency may take action regarding a license after giving
notice and the opportunity for an evidentiary hearing. 6 An evidentiary hearing provides
the opportunity for “full disclosure of all relevant facts and issues,” and affords all parties
“the 	opportunity 	to 	respond, 	present 	evidence 	and 	argument, 	conduct 	cross-
examination and submit rebuttal evidence . . . .”7 In other words, a KAPA evidentiary
hearing is an administrative version of a “trial” used to gather facts so that a licensing
agency can decide a case in a fair and objective manner.
KAPA proceedings include many stages other than the evidentiary hearing. 	The KAPA
expressly provides that a hearing is not required for a decision on whether to issue or
not issue a complaint, summons, or similar accusation, or to initiate or not to initiate an
investigation, 	prosecution, 	or 	other 	proceeding. 8 Agencies 	may 	issue 	summary
proceeding orders without first holding a hearing, subject to the affected party’s right to
request 	an 	evidentiary 	hearing 	on 	the 	order.9 When 	an 	evidentiary 	hearing 	is
requested, agencies may hold prehearing conferences to address other preliminary
matters.10
The only stage of a KAPA proceeding that KAPA requires to be open to public
observation is the evidentiary hearing. 11 The KAPA explicitly states that a KAPA
hearing is not a meeting for the purposes of the KOMA. 12 A prior Attorney General
Opinion reached the opposite conclusion. 13 However, that opinion was issued before
the KAPA was amended in 2009 to clarify that a KAPA hearing is not a meeting under
the KOMA.14
Under the KAPA, an agency’s decision in a particular case is made by written order. 15
The KAPA does not require a public vote for a decision to be effective; rather, the
5 K.S.A. 2013 Supp. 77-503(a); see also Heiland v. Dunnick, 270 Kan. 663, 672 (2001) (“The Kansas
Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq., sets up a framework for administrative
review. 	However, by its own terms, the KAPA applies only to the extent that other statutes expressly
provide that its provisions govern proceedings under those statutes.”).
6 K.S.A. 77-512.
7 K.S.A. 2013 Supp. 77-523(b).
8 K.S.A. 77-508.
9 K.S.A. 2013 Supp. 77-537(a).
10 K.S.A. 77-517.
11 K.S.A. 2013 Supp. 77-523(f). The presiding officer may close parts of a hearing pursuant to a provision
of law requiring confidentiality or expressly authorizing closure.
12 Id.
13 See, Attorney General Opinion No. 97-40 (“We believe the legislature intended the KOMA, including
the quasi-judicial deliberations exception, to apply to KAPA hearings, which meet the definition of a
meeting.”).
14 See L. 2009, Ch. 109, § 11; now codified in K.S.A. 2013 Supp. 77-523(f).
15 K.S.A. 77-526.

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decision is effective upon service of the final order upon the party and the party’s
attorney, if any. 16
KOMA Overview
The Kansas Open Meetings Act generally requires that meetings of governmental
bodies subject to its provisions must be open to the public. 17 A “meeting” is defined as
any gathering in person or through a medium for interactive communication by a
majority of the membership of the body “for the purpose of discussing the business or
affairs of the body.”18 Governmental bodies subject to the KOMA include state and local
agencies, boards, and committees and subcommittees thereof. 19 Thus, the KOMA has
a much broader application than the KAPA.
The KOMA allows a public body to enter into a closed or executive session for specific
purposes, 	such 	as 	to 	discuss 	matters 	related 	to 	non-elected 	personnel 	or 	for
consultation with an attorney which would be deemed privileged in the attorney-client
relationship.20 A public body may not hold an executive session for matters that do not
fall within the list of permitted subjects for executive sessions in K.S.A. 2013 Supp. 75-
4319(b) unless some other law requires closure. 21 “Exceptions to the requirement of
openness are to be narrowly construed.” 22 It should be noted that the KOMA does not
permit 	executive 	sessions 	for 	the 	purpose 	of 	receiving 	information 	regarding
investigations of licensees from board staff.23
The KOMA also expressly states that its open meetings requirement does not apply to
“any administrative body that is authorized by law to exercise quasi-judicial functions
when such body is deliberating matters relating to a decision involving such quasi-
judicial functions.” 24 A “quasi-judicial function” is one that “requires a weighing of the
evidence, 	a 	balancing 	of 	the 	equities, 	an 	application 	of 	rules, 	regulations 	and
ordinances to facts, and a resolution of specific issues.”25 “[Q]uasi-judicial is a term
applied to administrative boards or officers empowered to investigate facts, weigh
16 K.S.A. 77-530(a); 77-531.
17 K.S.A. 2013 Supp. 75-4318.
18 K.S.A. 2013 Supp. 75-4317a.
19 K.S.A. 2013 Supp. 75-4318(a) (KOMA applies to “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”).
20 See K.S.A. 2013 Supp. 75-4319(b).
21 See, e.g., Attorney General Opinion No. 2008-22 (“if the topic [of a meeting of the board of trustees of a
county hospital] regards an individual patient . . . a discussion could take place in executive session in
order to protect personal privacy”); and Attorney General Opinion No. 89-42 (opining that discussions by
a governing body of a public hospital concerning peer review and risk management reports are not
required to be held in accordance with the KOMA).
22 Attorney General Opinion No. 2009-21. See also Attorney General Opinion Nos. 2008-22; 96-61; and
87-10.
23 See K.S.A. 2013 Supp. 75-4319(b) (listing the subjects that may be discussed at a closed or executive
session).
24 K.S.A. 2013 Supp. 75-4318(g)(1) (emphasis added).
25 Golden v. City of Overland Park, 224 Kan. 591, 597 (1978).

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evidence, draw conclusions as a basis for official actions, and exercise discretion of a
judicial nature.”26 Deliberation means “[t]he act of carefully considering issues and
options before making a decision or taking some action.”27
Binding action may not occur during a recess for quasi-judicial deliberations under the
KOMA; any formal vote on a matter deliberated under the KOMA must be conducted in
an open meeting. 28
The KAPA and the KOMA are Mutually Exclusive
In our opinion, the KOMA and the KAPA are intended to be mutually exclusive. That is,
when a statute states that a licensing board shall conduct administrative proceedings in
accordance 	with 	the 	KAPA, 	it 	is 	the 	KAPA, 	not 	the 	KOMA, 	that 	governs 	such
proceedings, and the KOMA is inapplicable. We find support for this opinion throughout
both acts.
General Considerations
The purpose of each act is fundamentally different. 	The KOMA governs how a public
body, exercising its policy-making functions, must conduct business that affects the
general public and applies to both state and local governments. 	The public body holds
a “meeting.” 	In contrast, the KAPA establishes administrative procedures and duties
that affect the adjudication of individual cases and applies only to state agencies
exercising 	quasi-judicial 	functions. 	The 	state 	administrative 	agency 	holds 	a
“proceeding” or “hearing.” While KAPA hearings are open to the public, the public has a
diminished interest in the stages of a KAPA proceeding other than the evidentiary
hearing. 	In our opinion, it is consistent with the public interest to allow preliminary
actions in a professional disciplinary case to occur outside the public view, because it is
possible for an investigation to reveal that a complaint against a licensee is meritless,
that no probable cause exists to determine that a violation occurred, or that private or
confidential information, such as medical records or criminal history information, must
be discussed.
Notice under the KAPA and the KOMA
Under the KOMA, whenever a majority of the membership of a state licensing board or
any committee or subcommittee of the board meets to discuss the business of the
board, it must provide notice of such meeting to any person who has requested notice.
By contrast, when a licensing board or committee or subcommittee of the board meets
to serve as the presiding officer in KAPA proceedings, the KAPA requires notice to be
provided only to the parties to the KAPA proceeding and persons who have filed written
26 Thompson v. Amis, 208 Kan. 658, 663 (1972).
27 Black’s Law Dictionary (9 th ed. 2009), accessed on March 28, 2014.
28 K.S.A. 2013 Supp. 75-4318(a); Attorney General Opinion Nos. 97-41, 79-225.

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petitions to intervene in the matter.29 The KAPA does not require notice to be provided
to the general public whenever a licensing board meets to conduct KAPA proceedings.
Only KAPA Evidentiary Hearings Open to the Public
The KOMA requires 	all meetings of a state licensing board and its committees,
subcommittees and subordinate groups to be open to the public. 	By contrast, the only
portion of a KAPA proceeding that the KAPA requires to be open to public observation
is the evidentiary hearing, and even then the legislature explicitly provided that a KAPA
hearing is not a meeting under KOMA. 30 Given the fact that an evidentiary hearing
(despite being open to the public) is not a meeting for purposes of the KOMA, it seems
unlikely that the legislature intended for the other stages of a KAPA proceeding (which
KAPA does not require to be open) to be subject to the KOMA.
KAPA Presiding Officer vs. KOMA Majority
The KAPA permits a licensing board to designate one or more board members to serve
as the presiding officer for a KAPA proceeding. 31 In addition, the KAPA allows a
licensing board to refer a proceeding to the Office of Administrative Hearings to be
decided by a hearing officer that is not a board member. 32 Thus, the KAPA permits a
single person — not necessarily a board member — to hear and decide a proceeding.
By contrast, the KOMA requires decisions by a majority of the body to be made in a
public meeting. 33 Even if a licensing board by a majority vote in a public meeting
delegates the task of deciding licensure and/or disciplinary matters to a committee of
the board, that committee must also decide cases by majority vote in a public meeting.34
Service of Order vs. Public Votes
The KAPA does not require presiding officers to cast a public vote. 	This is because
decisions made under the KAPA are rendered in written orders that are served on the
parties. 35
Under the KOMA, a public body must take formal action to issue a binding decision by a
vote of the majority of members in an open meeting. 36
29 K.S.A. 77-516(b); 77-518(a).
30 K.S.A. 2013 Supp. 77-523(f).
31 See K.S.A. 2013 Supp. 77-514(g) and K.S.A. 77-516(a).
32 K.S.A. 2013 Supp. 77-514(a).
33 K.S.A. 2013 Supp. 75-4318(a) (“. . . no binding action by such bodies shall be by secret ballot”); see
also K.S.A. 2013 Supp. 75-4319(c) (“No binding action shall be taken during closed or executive
recesses, and such recesses shall not be used as a subterfuge to defeat the purposes of this act.”).
34 Whether a licensing board has the authority to delegate such matters depends upon its statutes. We
assume for the purposes of this opinion that the KSBEMS has such authority.
35 See K.S.A. K.S.A. 77-526(c) and (g); see also K.S.A. 77-529(b).
36 See K.S.A. 75-4318(a) and K.S.A. 2013 Supp. 75-4319(c).

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The KAPA and the KOMA Cannot be Reconciled
In our opinion, the above provisions of the KAPA and the KOMA cannot be reasonably
read as requiring simultaneous compliance with both acts. 	Therefore, it is our opinion
that where a statute requires a licensing board to conduct a proceeding in accordance
with the KAPA, that board is not required to comply with the KOMA during any stage of
the proceeding.
KSBEMS Disciplinary Proceedings
Having reviewed the provisions of the KAPA and the KOMA, we turn now to your
specific question about KSBEMS licensure and disciplinary proceedings. 	K.S.A. 2013
Supp. 65-6133(b) provides that the KSBEMS “may limit, modify, revoke or suspend an
attendant’s or instructor-coordinator’s certificate or the board may refuse to renew such
certificate in accordance with the provisions of the Kansas administrative procedure
act.”37 The KSBEMS may also revoke, limit, modify, suspend or refuse to renew an
ambulance operator’s permit or training officer’s certificate in accordance with the
KAPA. 38 Therefore, these proceedings must be held in accordance with the KAPA, not
KOMA.
KSBEMS statutes are silent on whether the KAPA applies to proceedings to grant or
deny an original or reinstatement application. 	Therefore, the KAPA does not govern
these proceedings and they must be held in accordance with the KOMA. 39 This
important distinction affects the extent to which Investigations Committee proceedings
must be open to public observation.
KSBEMS Proceedings under KAPA
When the KSBEMS Investigations Committee is operating under the KAPA, it can
conduct proceedings without notice or public observation on matters such as receiving
staff reports on the status of pending investigations and findings from completed
investigations; 	determining 	whether 	probable 	cause 	exists 	to 	impose 	discipline;
determining whether sufficient grounds exist to refuse to renew a certificate; and
deciding whether adverse action such as the modification, suspension, or revocation of
a certificate is warranted under the facts of a particular case. 	The only stage of the
proceeding that must be open to public observation is the evidentiary hearing. 	Any
decision by the Investigations Committee in a particular case should be rendered in a
written order that is served upon the party and the party’s attorney.
37 K.S.A. 2013 Supp. 65-6133(b).
38 K.S.A. 2013 Supp. 65-6129c and 65-6132.
39 Not every application must be decided by the professional licensing board itself. A board may delegate
to staff the authority to approve or deny applications that do not require the exercise of discretion. See,
e.g., Attorney General Opinion No. 90-36.

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KSBEMS Proceedings under KOMA
When operating under the KOMA, a meeting of a majority of members of the KSBEMS
Investigations Committee for the purpose of discussing the business or affairs of the
Committee 	must 	generally 	be 	open 	to 	the 	public. 	However, 	the 	Investigations
Committee may vote to enter into an executive session for the purpose of consulting
with the Board’s litigation counsel on matters such as whether to offer a consent
agreement to an applicant for certification, whether sufficient grounds exist to deny an
application 	for 	certification, 	or 	on 	any 	other 	matter 	for 	which 	the 	Investigation
Committee’s litigation counsel may provide legal guidance.
The Investigations Committee may also recess an open meeting to engage in quasi-
judicial deliberations. 40 With two exceptions, all of the activities of the Investigations
Committee described on page 2 constitute quasi-judicial functions because they involve
the weighing of evidence, the application of statutes and Board regulations to the facts,
and the exercise of discretion in resolving specific issues. 	The first exception is
discussion related to the adoption of Board policies. 	Because adoption of Board
policies does not involve a specific quasi-judicial matter, any such discussion must be
held in an open meeting. 	The second exception is staff reports to the Investigations
Committee. When staff is reporting information or evidence in a case, the Committee is
not yet deliberating on that case and is subject to the KOMA.41
When the Investigations Committee has concluded its quasi-judicial deliberations, it
must resume the open meeting and take a formal vote to render a binding decision. 	If
the Committee cannot form a consensus and is not yet ready to make a decision, the
Committee must reconvene the open meeting and announce that no consensus was
reached 	and 	thus 	there 	will 	be 	no 	formal 	vote 	on 	a 	decision. 	Thereafter, 	the
Investigations Committee may continue their deliberations at any regularly scheduled or
special meeting. At such a meeting, the Committee may recess from the open meeting
to engage in quasi-judicial deliberations, but any binding decision must be made by
public vote in an open meeting.
Conclusion
The extent to which the investigations committee of a professional licensing board may
conduct licensing and disciplinary matters outside of an open meeting depends on the
40 When an open meeting has been recessed to conduct quasi-judicial deliberations, the public body
should not allow the presence of another person to present additional evidence. Loewen v. U.S.D. No.
411, 15 Kan. App. 2d 612, 620-21 (1991) (“When acting as a quasi-judicial body, the Board is not
empowered to gather additional information beyond that presented to the hearing committee. 	It must
comport with the requirements of due process. . . [T]he presence of antagonistic or unnecessary parties
to the [deliberations is] questionable under our open meetings concept, and it smacks of unfairness to the
[licensee] whose rights are being considered.”).
41 See Attorney General Opinion No. 97-41 (“When exercising a judicial function, the distinction is made
between the gathering of information to be considered during deliberations and the actual act of
deliberating over the information. The former must be conducted during an open meeting while the later
is exempt from an open meeting.”)

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board’s licensing statutes. 	In the case of the KSBEMS, all proceedings to limit, modify,
revoke, suspend or refuse to renew an attendant, instructor-coordinator or training
officer certificate or an operator’s permit shall be in accordance with the KAPA. 	Other
than evidentiary hearings, no other stage of KAPA proceedings is required to be held
publicly. 	In a KAPA proceeding, the Investigations Committee does not need to take a
vote in an open meeting for its decision in a case to be effective; the Committee’s
decision is rendered by written order that is served upon the parties.
The KAPA only applies to the extent that other statutes expressly provide that the
provisions of the KAPA govern proceedings under those statutes. 	Therefore, in the
case of the KSBEMS, decisions to grant or deny an original or reinstatement application
for an attendant, instructor-coordinator or training officer certificate or an operator’s
permit are not pursuant to the KAPA, but instead must occur in accordance with the
KOMA. 	Such decisions must occur in a meeting open to the public. 	However, the
Investigations Committee may recess into a closed or executive session for the purpose
of consultation with an attorney that would be deemed privileged in the attorney-client
relationship. 	In addition, the Investigations Committee may recess for quasi-judicial
deliberations for a specific case, but the Investigations Committee’s decision in the case
must be made by a vote in a meeting open to the public.
To the extent that Attorney General Opinion 97-40 reaches a different conclusion
concerning the applicability of the KOMA to the KAPA, it is withdrawn.
Because the applicability of the KOMA and the KAPA depend on each licensing board’s
statutes and the facts of each circumstance, a licensing board should consult with the
board’s general counsel for further guidance on this issue.
Sincerely,
Derek Schmidt
Attorney General
Lisa A. Mendoza
Assistant Attorney General
DS:AA:LAM:sb