Shawnee County District Attorney Chad Taylor's office said Tuesday that a series of "legislative dinners" at Gov. Sam Brownback's Cedar Crest mansion included committee majorities discussing business, but did not constitute any "substantive violation" of the Kansas Open Meetings Act.
In a decision released after more than six months of investigation, Taylor's office said the legislators acted out of "ignorance" and recommended they receive more KOMA training.
"The violations of KOMA that occurred during these Q&A sessions, if any, were borne of ignorance, not of malicious intent," assistant district attorneys Matt Patterson and J. Todd Hiatt wrote. "Because of this, we have concluded that any violations of KOMA that occurred during the governor's legislative dinners are best characterized as being technical in nature rather than a substantive violation of KOMA."
Brownback hosted Republican members of 13 committees at seven dinners throughout January, sometimes bringing together two or three committees with related policy missions. Hiatt and Patterson's report said the dinners usually concluded with Brownback speaking about his agenda in "tailored remarks to each group based on the attendees' committee membership" in an attempt to "make a direct pitch from the governor to legislators who [would be] considering his agenda."
A Q&A related to the governor's remarks generally followed.
Patterson and Hiatt said the gatherings skirted a substantive violation of KOMA by "the slimmest margin."
"Should any of the legislators participate in this sort of discussion in the future, whether hosted by the executive branch, a lobbyist or any third party, they do so at significant risk of a substantive KOMA violation," they wrote.
Taylor, a Democrat, began investigating the dinners after receiving a KOMA complaint from The Capital-Journal and the Kansas Press Association. He said from the outset that the process would include determining who among the 90-plus legislators invited attended the dinners and interviewing each in turn. He also interviewed members of Brownback's staff.
"The governor's office cooperated fully with the district attorney's investigation," the governor's spokeswoman, Sherriene Jones-Sontag, said. "As we maintained from the outset, the dinner at Cedar Crest did not violate KOMA. The district attorney has confirmed there were no substantive KOMA violations and that the governor and his staff clearly understood KOMA and took the appropriate precautions."
Doug Anstaett, the executive director of the Kansas Press Association, called the report from Taylor's office "the kind of hollow victory those of us who fight for open government have come to expect."
"Once again, the decision rendered has been an acknowledgement that a technical violation of the law occurred, coupled with a plea to get more training and an admonition to go and sin no more," Anstaett said.
The office of Attorney General Derek Schmidt, a Republican, offered legal representation for the legislators at their interviews. Taylor's office reported that a majority of the legislators accepted representation and one legislator brought private counsel to the interview.
House Speaker Mike O'Neal, R-Hutchinson, said he was pleased with the district attorney's report.
“I had nothing but confidence that our legislators adhered to the guidelines laid out in KOMA while at the governor’s residence," O'Neal said.
Many legislators have said they viewed the dinners as purely social, but a few, like Rep. Charlie Roth, R-Salina and Sen. Dick Kelsey, R-Goddard, said the gatherings raised KOMA concerns for them.
Emails obtained through an open records request in March included one in which Cedar Crest's manager advised Rep. Joe McLeland, R-Wichita, that the dinners were not intended for spouses because "committee members will spend some time discussing business during/immediately following dinner."
The assistant district attorneys said the content of those discussions was key to determining whether the dinners triggered KOMA.
Despite interviewing nearly 50 legislators, Taylor's office said it struggled to piece together the content, because "almost without fail (legislators) could not remember the substance of the questions asked or who participated in the Q&A sessions."
But Hiatt and Patterson said there were a few exceptions that "revealed enough to cause us considerable concern."
Senate President Steve Morris, R-Hugoton, attended the first dinner, which brought together House and Senate committees that deal with public employee pensions.
Hiatt and Patterson's report stated that one of Morris' colleagues asked about the strategy for passing Brownback's proposed reforms to the Kansas Public Employee Retirement System, which spurred Morris to stand up and say "we can't do this" because of the open meetings law. Brownback, the report states, agreed.
"However, the conversation soon returned to specifics, including discussion about a triggering mechanism for movement of the bill, defined contribution plans as compared to defined benefit plans, and the positions that other states had taken on public employee retirement systems," Hiatt and Patterson wrote.
Morris, the leader of the moderate Republicans who have clashed with Brownback and House conservatives, was defeated earlier this month in the Republican primary.
The district attorney's report also found that when three education committees gathered at Cedar Crest they discussed specifics of the governor's school finance proposal and the potential for future education funding lawsuits.
"The rest of the dinners remain shrouded in shrouded in incomplete recollections and vague memories," the report states.
Kelsey told the Capital-Journal that members of his Senate Assessment and Taxation Committee discussed specifics of the governor's tax plan at Cedar Crest. Some members of that committee corroborated his account, while others said they could not remember what was discussed.
Brownback said members of his staff warned legislators not to violate KOMA, but Taylor's office concluded that such warnings may have been less than effective because few of the legislators present had read and understood the open meetings law.
"Where they found themselves at the top of a steep slippery slope, they did not step away but instead recklessly danced on the edge of a KOMA violation without any appreciation for the risk involved," Patterson and Hiatt wrote. "In the end, it appears that most legislators in attendance simply lacked the knowledge that would be expected of an elected official under the circumstances."
It is not unusual for governors to host legislators for dinner at Cedar Crest. But aides for Democratic governors Kathleen Sebelius and Mark Parkinson said they patterned their gatherings after Republican governor Bill Graves and invited random, bipartisan groups of legislators rather than committees and did not use the dinners to discuss their legislative priorities.
Hiatt and Patterson's report said legislators did not appear aware of the potential KOMA implications of attending such presentations behind closed doors.
"It is clear that none attended these dinners with the intent of meeting outside the public view to discuss the business of their committees," Patterson and Hiatt wrote. "Instead they participated in a Q&A session at the invitation of the governor after being cautioned about the potential applicability of KOMA. However, almost all attendees did not have the requisite knowledge of KOMA or how it applied to their roles as legislative committee members."
Anstaett said KOMA is meant to keep majorities of legislative bodies from discussing the public's business outside of the public eye, and the dinners fit that description.
"While they didn't make decisions at the governor's mansion, they got a face-to-face pep talk about how critical Mr. Brownback's agenda was to the future of the state of Kansas," Anstaett said. "If that's not a discussion of the people's business, I don't know what is."