By Andy Marso, Topeka Capital-Journal
Shawnee County District Attorney Chad Taylor's investigation into a series of legislative dinners at the governor's mansion last year has inspired a Wichita-area legislator to draft a bill intended to clarify such gatherings are legal under the Kansas Open Meetings Act.
After several months interviewing legislators who attended the seven Republican-only dinners, in which attendees were invited by committee, Taylor determined that "technical violations" of the law likely occurred. But he didn’t move forward with prosecutions because he believed legislators didn’t intend to break the law and most of them couldn’t remember enough details of what was said at the dinners.
Still, Rep. Jim Howell, R-Derby, said he introduced the bill because last year's investigation is putting a chill on legislative dialogue.
"It's starting to affect our ability to function because we're living under the threat of the Shawnee County prosecutor," Howell said.
KOMA prohibits the majority of a government body from discussing business without notifying the public or allowing public scrutiny. It is punishable by a $500 fine and is grounds for recall from office. Legislative committees may vote to exempt themselves, and all bodies have authority to go into closed executive session.
Howell's bill would specify that the law doesn’t apply to social gatherings at which the body "does not deliberate specific matters that, at the time of the exchange, the participating members expect to come before the body or agency at a later date."
Doug Anstaett, executive director of the Kansas Press Association, said his group will "oppose this vehemently and warn the citizens of Kansas to beware of this frontal assault on their right to participate in their government."
"Under this language, meetings such as those that occurred at Cedar Crest last year would be perfectly all right if the legislators just didn't 'deliberate,' " Anstaett said. "They could discuss pending or proposed legislation as long as they didn't take that next step to begin careful consideration of the language. That's a huge leap from the definition of a meeting today and raises huge concerns among our association members that social gatherings will become the pretense for illegal discussions."
House Minority Leader Paul Davis, D-Lawrence, said he was similarly skeptical of changing the standard for a KOMA violation from discussion of public business to deliberation.
"I see that as problematic," Davis said. "I just feel strongly that whenever a majority of a committee is together they need to refrain from having a group discussion about an issue they may be rendering a decision on."
Howell said the point is to draw a brighter line on how far legislators can go in talking about ideas without running afoul of the law. He said he attended one of the dinners last year that brought together three education committees, but no substantive policy discussions occurred.
"The governor basically repeated his State of the State address," Howell said. "There were some questions from legislators to the governor, but there was no discussion between members of the committee who were in the room."
Transcripts from Taylor's office revealed that some legislators at that dinner recalled discussing Gov. Sam Brownback's school finance proposal and the potential for future education funding lawsuits.
Those who attended other dinners recalled talking about the governor's tax plan and the merits of moving public employees to a 401(k)-style defined contribution plan.
Howell said concerns about Taylor's interpretation of the law sprung to his mind recently when education committees took a field trip and wondered if they needed three separate buses.
Howell said he vetted his bill with the Kansas Attorney General's Office. It applies to all government bodies, but specifically exempts party caucus gatherings of the Kansas House or Senate. It also specifies that gatherings of government officials must be "prearranged" before they fall under KOMA.
"If we're trying to do something in secret that basically is creating policy, that is where I think you've crossed the line of KOMA," Howell said.
When asked where the line of "creating policy" begins, Howell said, "You know, I don't know. That's a good question."
Howell said he introduced the bill to start a conversation about KOMA, but he personally believes he should be able to share his opinions with fellow committee members privately.
"I think I should have some freedom," Howell said. "I'm not deliberating on a bill, I don't have a bill in front of me. We're not creating policy, we're not dissecting the intent of some bill and doing the work of a committee."