TOPEKA — The state board representing Kansas’ individual and small business utility customers Friday responded to a flurry of open records requests by releasing a staff memorandum on a House bill that triggered dismissal of the agency’s lone attorney.
The vote by the Citizens’ Utility Ratepayers Board to comply with the Kansas Open Records Act occurred at a time when state lawmakers and others expressed apprehension about future of the consumer advocacy board created by the Legislature to help control electric and natural gas rates.
Controversy about release of the document was mixed up in a web of emergency meetings and contentious emails prominently featuring CURB chairwoman Ellen Janoski and leading to the firing Monday of Niki Christopher, who had served as a CURB attorney for 15 years.
Initially, Janoski resisted requests under the state’s open records law for release of the memo from Christopher. During the agency’s meeting Friday, she held to that position but voted with her colleagues to make the document public.
“We are not obligated under attorney-client privilege to release that letter,” Janoski said.
However, an attorney with the Kansas Department of Administration assigned to represent CURB on an interim basis concluded there was no justification for withholding the document.
“I have advised I have no problem at all releasing this material,” said Philip Michael, a staff attorney in the office of chief counsel at the Department of Administration.
CURB member James Mullin said he would be happy to “give the press all of that” requested documentation.
“How does Niki feel about that?” said CURB member Bob Hall.
“It doesn’t matter,” Janoski said. “The attorney-client privilege is ours to waive.”
Christopher had recently been made interim consumer counsel at CURB. Her sudden departure left CURB without an attorney to perform duties in utility cases and in quasi-judicial proceedings of the KCC.
At the board’s meeting Friday — interrupted by an executive session — a consensus was apparently reached to have Michael represent CURB.
In an email to Christopher, Janoski asserted Christopher’s written analysis of House Bill 2500, introduced in a bid to block overhaul of CURB’s mission and stop the board from enforcing a gag order on its legal counsel, had been crafted in a “demeaning, disrespectful and self-serving manner.”
Janoski said she intended to delve into whether Christopher violated ethical rules in her work for CURB. The chairwoman alleged Christopher may have conspired with two House members, Rep. Annie Kuether, D-Topeka, and Rep. Jim Ward, D-Wichita, on introduction of the House bill. Janoski promised to “thoroughly investigate” collusion.
“I believe they had your inspiration,” Janoski said in the email to Christopher one day before her dismissal. “You are creating controversy rather than helping us contain it. Something about this gambit seems too well planned.”
In an interview, Christopher said she hadn’t collaborated with Kuether and Ward on the bill, and that her memo indicated she recommended CURB oppose the legislation. Christopher said she complied with the board’s instructions not to talk with reporters or legislators after the board sought control of external communications.
“I have obeyed that order,” Christopher said in a reply to the conspiracy email from Janoski intended to be sent to all board members. “Your accusations that I have been in communication or collusion with legislators or the press are entirely unfounded.”
In a separate interview, Kuether said she didn’t work behind the scenes with Christopher to develop the House bill.
“I can’t speak for Representative Ward, but I did not work with her in any way on this piece of legislation,” Kuether said. “She was a 15-year employee who had been muzzled. And, I think it’s pretty shocking behavior.”
Ward said the bill was a response to published reports about CURB changing course and wasn’t written with assistance from Christopher.
“I’ve never met Miss Christopher. I’ve never talked to Miss Christopher,” Ward said.
He said movement by CURB’s current members to extinguish the consumer advocacy role at the agency warranted intervention by the Legislature. He said lawmakers shouldn’t turn their back while CURB is dismantled and the utility industry’s high-paid consultants and lobbyists work unfettered by a voice for consumers.
Christopher said she had faithfully served interests of CURB in her legal capacity. She said Janoski’s conclusions about her degree of professionalism were without factual basis.
“I’m very concerned about the future of CURB,” Christopher said. “We need a consumer counsel to act to do the things that CURB was created by the Legislature to do. A consumer counsel can’t be restrained from talking to the Legislature or the press, and do the full range of duties of the consumer counsel.”
One day before Christopher was fired, Janoski requested her email statement critical of Christopher be sent to the entire board. Christopher declined and indicated transmitting the chairwoman’s letter to her peers could be a violation of the Kansas Open Meetings Act.
The House bill in question was introduced amid discussion in December that Gov. Sam Brownback’s appointees to CURB intended to dramatically alter the board’s mission by moving away from directly serving interests of individual and small business customers when natural gas or electric companies sought rate increases from the KCC.
Instead, the governor’s appointees considered whether they should concentrate on blocking coal plant regulations sought by the U.S. Environmental Protection Agency and the administration of President Barack Obama.