It’s about time, Johnson County’s district attorney says, to send local public officials back to school.
District Attorney Steve Howe says some Johnson County governments are having trouble following the law when it comes to allowing the public access to meetings and documents.
Just last week, Howe found that the city of Mission had violated the state open meetings law after its mayor purchased a building without council approval. He found Gardner in violation earlier this year.
He’s also investigating allegations that Shawnee council members may have had illegal meetings that resulted in the hiring of the uncle of the mayor’s wife for a council seat.
Some also are complaining that the cost of public documents is so high — $11,000 in one recent case — that the average citizen can’t afford them even though many of the records can be obtained with a couple clicks of a mouse.
Howe said he has had conversations with the state attorney general about the problem and has plans to ask that government officials in Johnson County take formal training to try to avoid inadvertently violating the state’s open meeting and records law.
“It would probably behoove us to make a request to all the government entities here in Johnson County to do a formal training and just go over the dos and don’ts,” he said.
Good government should be transparent, Howe said: “That is what the taxpayers want and that is what being a democratic government is all about, transparency.”
The problem, both in Johnson County and other places in Kansas, has become epidemic, said Doug Anstaett, executive director of the Kansas Press Association.
“We are working on it because it has become obvious that this problem isn’t going to get any better,” Anstaett said.
He said training is not enough and too few fines are issued.
State records show that between 2007 and 2010, more than 130 complaints were filed with the state attorney general but only one, in Wichita, led to a fine. The penalty: $100.
But Don Moler, executive director of the League of Kansas Municipalities, which trains elected officials and government staffs in the use of open meeting and open records laws, said the problem isn’t as serious as some are portraying.
“There really aren’t that many violations given the fact how many governing bodies there are and how many choices and decisions they are making,” said Moler, whose organization is a taxpayer-funded lobbying association that also advises local leaders on government policies.
Open or not
Last year the city of Mission got the opportunity to buy a vacant building.
The city council directed City Administrator Mike Scanlon to talk with the owner who was offering it at a greatly reduced price. In January Mayor Laura McConwell, an attorney, purchased the building for the city when she signed the closing documents.
But state law requires the council to approve all land purchases prior to the sale.
Because of staff absences and other conflicts, the council wasn’t formally apprised of the purchase until about four months later in an April public meeting, when McConwell asked the council to memorialize the purchase, putting it on the record with a vote.
An angry debate ensued and the vote failed.
McConwell said in an interview this week that she had been acting on the advice of the city’s land-use attorney.
“It was the advice that we were given, and it is the method we have been using to purchase property for about eight years,” McConwell said. “We’ve probably purchased 30 other parcels using this same method.”
Pete Heaven, the attorney who advised her and the council, gives the same advice to other municipalities, she said.
“Mission is not the only municipality that has been using this method,” she said.
Heaven, a Johnson County real estate lawyer, said he would reserve any comment until he and city officials have a meeting with Howe next week.
McConwell said there was never any intent to hide land purchases from Mission residents. It’s just that buying land can be tricky and if land speculators find out about pending deals, they can make prices go up and down drastically.
“Everything we have done, we have been very open about and nothing has been a secret,” she said. “We don’t want to violate the law.”
The Shawnee City Council in May took applications to replace a Ward 2 city council member who had resigned. One applicant was Alan Willoughby, uncle of Mayor Jeff Meyers’ wife.
Willoughby’s appointment was approved by a majority of the council, but Councilwoman Michele Distler said she could not support him because she believed the vote was already predetermined, including who would make the motion and who would second it.
Tony Lauer, a resident who was at the meeting, filed a complaint with the district attorney, who has acknowledged he is investigating.
Mayor Meyers told The Star that he had discussed the appointment of his wife’s uncle with three council members individually but did not believe it violated the law.
Meyers said the vote was not predetermined and that the conversations were casual, one at lunch and two others in passing.
Lauer said he filed the complaint because there seems to be a lot of confusion over the open meetings law.
“If by making a complaint to the district attorney it eliminates this confusion in the future, mission accomplished,” he said.
Some government officials found to have violated the law still don’t agree they did anything wrong.
Last month the Shawnee County district attorney said Gov. Sam Brownback and many state lawmakers had violated the open meetings act and recommended training.
But already Brownback and some lawmakers, who met for private dinners at the governor’s mansion, are saying they did nothing wrong because the district attorney is not prosecuting them.
Although the League of Kansas Municipalities will likely be holding the training sessions, Moler, its executive director, said he agreed that lawmakers did nothing wrong.
The Kansas open records law leaves it up to each government to decide how much to charge for records.
And that has led to what appear to be exorbitant prices for some documents.
For example, the ACLU launched a national campaign recently to obtain records from a new surveillance program, the automatic license plate tracker.
Six police agencies in Kansas and western Missouri received ACLU requests for records.
For Kansas City police records, the cost was $83. For Hutchinson, it was zero.
For Lenexa, it was $11,000.
Doug Bonney, ACLU counsel for this area, said charging $11,000 was outrageous but prices like that are not unusual in Kansas.
“The Kansas Open Records Act is really the Kansas Obscure Records Act,” he said. “The pricing is a massive flaw.”
He said the ACLU now is negotiating with Lenexa.
The problem, he and others said, is that Kansas allows governments to charge for staff review time of documents, an expenditure some states prohibit.
In Lenexa, those charges are $40 an hour. And MacKenzie Harvison, Lenexa deputy attorney, said the ACLU documents would take hours to review.
The Missouri Sunshine Law allows three main exemptions that give governments discretion when deciding whether to make a record open.
But Harvison said the Kansas law has almost 40 exemptions, which adds time in reviewing records.
She said governments are not trying to overcharge the public. “I think there is enough guidance out there that you have to be really careful that you are not gouging people,” she said.
But Anstaett said research is so much easier and less time-consuming today because of computers that the costs should reflect that.
“What good does it do to have an open records act if nobody can afford to pay the fees to get them?” Anstaett asked.
Then there is the case of a student journalist at the Johnson County Community College who sought seven months of emails between a college employee who had been fired and the employee’s supervisor.
The college said it would cost $47,000 to process the request.
After several months and a lawsuit, an agreement was reached, but the student still had to pay $450.
“Public officials have forgotten that the public records are already paid for … the public paid the taxes, they paid the salaries that helped produce these records,” Anstaett said. “All we are asking for them to do is go to a file cabinet or a computer and give those records to us. They are ours, bought and paid for.”