Tue September 11, 2012
Kansas Investigation Uncovers Flaws In Sunshine Law
A Kansas district attorney concludes that a series of meetings of key members of the legislature called by Governor Sam Brownback broke the state's open meetings law. But there will be no charges and no fines and the investigation left a number of questions about the unannounced meetings and the open records law itself.
The investigation of a series of dinner meetings involving Governor Sam Brownback and members of key legislative committees began with someone who knew reporter Andy Marso covers the Kansas statehouse... and gave him a copy of an invitation that said “as a member of such and such committee you're invited to a dinner at Cedar Crest.”
It was the first time Marso, who works for the Topeka Capital-Journal, had heard about those dinners at the governor's mansion. The reporter commented, “They certainly never appeared in the daily printed calendars or on the Legislature's web site. And if you ask, and if you look at the transcripts where the DA has talked with people from the governor's office, they've said, “It's not our intention to invite the public. These are not public meetings, these are closed meetings.”
The “DA” to whom Marso referred is Democrat Chad Taylor of Shawnee County. With the state's attorney general defending the governor and the legislators against the Capital Journal's complaint, the investigation fell to the district attorney whose jurisdiction included the capitol.
Todd Hiatt of Taylor's office said the investigation came up short: “We just didn't have enough evidence to go forward. That said, we knew that there were violations to the open meetings act, but when you look at case law deals with those violations, the only real conclusion that we could come to is that the violations we could identify were technical in nature.”
Hiatt says some parts of the Kansas Open Meetings Act and the public notification process could be improved, but that wasn't the main problem. He said the investigation was stymied by “the recollection of the legislators involved.”
“Had they remembered more specifically who spoke and what was said, the outcome may have been different. McGowan expliined.
The issue of recollection was met with skepticism by some. Doug Anstaedt of the Kansas Press Association has a term for it: “political amnesia,” He added, “I know the governor is more interesting than that. I know they were listening. I know they heard what he said. And so, to me, that tells me that if they weren't coached they were all on the same page as far as not remembering what was discussed. ”
But from the start Governor Brownback and the legislators said they considered the meetings as merely “social events, ” which means no matter how tightly written the law was, they said it didn't apply.
Further, Brownback's staff contends that the open meetings law only applies to governmental bodies, and does not apply to the governor himself. Hence, they assert, even if the governor calls a meeting which causes a quorum of members of a legislative committee to discuss public business privately, the governor has not violated any law.
Reporter Andy Marso does not believe Brownback and the legislators had any malicious intent, but says they did not understand that under the law notification is required for any meeting at which a majority discusses the “business of the body.”
Marso concedes that the meaning of “business of the body” is subject to some interpretation, but he says it seemed that many of the legislators believed that the standard was that nly some sort of secret vote on an issue is prohibited. That, says Marso is never even implied in the Kansas Open Meetings Act.
However, the two states' open meetings laws difffer in some important ways.
For one thing, the Press Association's Doug Anstaedt notes that the Kansas law does not require either an agenda in advance or the taking of minutes. Anstaedt says most do keep minutes, for various reasons, but “that's not a requirement, so, if somebody has a legitimate public meeting that's nobody's there to hear, and they don't make minutes, you know, its potentially a hole in our law.”
In Missouri, minutes are required, on paper, and the form is determined by the secretary of state.
At the Shawnee County District Attorney's office, Lee McGowanTodd Hiatt ays has the option under the Kansas Open Meetings Act to exempt itself – that at its next session legislature could declare, “You know what? We can meet after hours whenever we want and not have to notify anybody.”
Mc Gowan adds, “I hope that doesn't happen, but that's built into the law.”
Jean Manecke, attorney for the Missouri Press Association says in Missouri, meetings cannot be closed unless they are of a very specific nature, such as discussions of legal or personnel matters.
As for the dinners at Cedar Crest, the District Attorney's report calls for better education of legislators regarding the sunshine law and a review of notification procedures.
It remains to be seen whether anyone will suggest changes to the law's provisions on record-keeping or exemptions.