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Shame remains the big weapon with Kansas meetings law

8/27/2012

By JOHN HANNA

By JOHN HANNA

Associated Press

TOPEKA -- A Kansas prosecutor's investigation into private dinners Gov. Sam Brownback hosted for legislators demonstrates a public shaming often is the only consequence faced by officials who violate the state's open meetings law.

The Kansas Open Meetings Act's enforcement depends upon prosecutors having an appetite for going to court or individuals and groups who have the money to pursue their own lawsuits. Also, an individual -- like Brownback -- can schedule gatherings but then face no legal repercussions over violations that occur at them.

Shawnee County District Attorney Chad Taylor concluded last week legislators violated the law during seven private dinners with Brownback in January at Cedar Crest, the governor's residence.

He scolded lawmakers publicly and admonished them to become better informed about the law's requirements. But Taylor is not pursuing further action, saying he could prove only "technical" violations.

Taylor suggested during a news conference legislators received enough adverse publicity during the nearly seven months of his investigation that they'll look to avoid open meetings violations.

Representatives of statewide news organizations are skeptical that a public shaming actually will stick.

"When Taylor backs down and takes a powder on the thing, they think it's perfectly OK, what they did," said Mike Merriam, an attorney for the Topeka Capital-Journal and the Kansas Press Association, the entities that filed the formal complaint that led to Taylor's investigation.

The Open Meetings Act generally prohibits a majority of a legislative body from meeting without giving the public notice and access to the event.

A gathering of a committee's majority is a meeting if public business is discussed and lawmakers interact.

Officials who knowingly violate the law can be fined up to $500 per incident, though only a county prosecutor or the attorney general can seek such a sanction from a court. However, a prosecutor or private citizen also can go to court for an order for corrective action.

Brownback had the dinners for members of 13 legislative committees, inviting more than 90 lawmakers, almost all of them fellow Republicans. Some GOP lawmakers have seen Taylor's investigation as political because he is a Democrat -- and that's kept some of them from being too chastened by the attention given the events.

A 10-page report issued by Taylor's office noted at a Jan. 9 dinner, Brownback invited Sen. Jeff King, an Independence Republican and co-chairman of a study committee on pensions, to discuss its work. A question-and-answer session followed his presentation, the report said.

But the report said the other dinners "remain shrouded in incomplete recollections and vague memories."

Taylor told reporters that without more specific recollections from legislators, he can't prove substantial violations of the law, making a court unlikely to intervene.

Taylor also acknowledged from the outset Brownback, as an individual, isn't subject to the open meetings law.

A similar issue arose in 2004, when Taylor's predecessor as district attorney concluded then-Attorney General Phill Kline hadn't violated the open meetings law -- and couldn't -- for setting up private sessions with small groups of State Board of Education members.

Doug Anstaett, the Kansas Press Association's executive director, said an inability to hold an individual responsible for calling what becomes an illegal meeting is a flaw that has "jumped to the top of our agenda."

"When the highest elected public official calls the meetings, I think it's time to look at it," Anstaett said.

"When the governor calls and asks you to go to a meeting, most people say yes because of his position of authority," he added.

Taylor's report noted Brownback and his aides saw the potential risk that legislators could violate the Open Meetings Act during the dinners and "made some attempts" to prevent problems that included verbal warnings.

Brownback spokeswoman Sherriene Jones-Sontag said after the report's release: "The district attorney now has confirmed there were no substantive KOMA violations and that the governor and his staff clearly understood KOMA and took the appropriate precautions."

Her statement -- and one from House Speaker Mike O'Neal, a Hutchinson Republican, that he was pleased Taylor found no substantial violations of the law -- pointed to the larger issue about how the law is enforced.

After their statements, Taylor adopted a tougher tone in a news conference, pointing to legislators' collective amnesia about the events as the only reason he couldn't pursue further action, though he believes substantial violations did occur.

"My expectation would be that the governor and that the leadership of the Kansas Legislature would never want to find themselves in this trick bag again," Taylor said.

But Jones-Sontag didn't back away from her assessment of Taylor's report after his tougher comments. Brownback's office still doesn't concede that the Cedar Crest events were meetings, and many legislators view them as purely social gatherings.

A court order -- or an agreement produced under the threat of a potential order -- would spell out in writing what violations occurred and how they could be avoided.

Otherwise, Merriam predicted, "Brownback or some other governor is going to call the same kind of dinner meetings in the future."

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Political Writer John Hanna has covered Kansas politics and government since 1987. Follow him on Twitter at www.twitter.com/apjdhanna