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Archive for Tuesday, August 21, 2012

DA says governor’s meetings didn’t violate law

August 21, 2012, 9:42 a.m. Updated August 21, 2012, 1:45 p.m.

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— Private dinners that Kansas Gov. Sam Brownback hosted for lawmakers at his official residence didn't substantially violate the state's opening meetings law even though they touched upon his legislative agenda, a prosecutor said Tuesday.

Shawnee County District Attorney Chad Taylor said technical violations of the Kansas Open Meetings Act may have occurred but that legislators had not acted in bad faith because they didn't fully understand the law.

The report from Taylor's office criticized legislators, but representatives of news organizations saw it as a hollow victory, saying they've come to expect strong words but little real enforcement of the open meetings law.

Brownback hosted seven private dinner meetings in January for members of 13 legislative committees, inviting more than 90 lawmakers. Almost all of the legislators were Republicans like Brownback. Taylor is a Democrat — something GOP lawmakers have repeatedly noted in questioning his investigation.

But Brownback spokeswoman Sherriene Jones-Sontag said "the district attorney now has confirmed" no substantive violations of the law occurred.

The Kansas Open Meetings Act generally prohibits a majority of legislative bodies from discussing government business without public notice or access to the meetings. An investigation found that in some instances the lawmakers attending the dinners only had a "limited understanding" of the law, according to a 10-page report produced by Taylor's top two deputies.

"Where they found themselves at the top of a steep slippery slope, they did not step away but instead recklessly danced on the edge," the report said. "While we can conclude that none of the legislators attending the January 2012 dinners at Cedar Crest appear to have acted in bad faith, we must conclude that the legislators acted out of ignorance of the applicable law."

The report said dozens of legislators interviewed showed "a collective inability" to remember details about the gatherings. Taylor's office concluded that any violations of the open meetings law were technical.

"However, they are only technical violations by the slimmest margin," according to the report.

Senate Majority Leader Jay Emler, a Lindsborg Republican, said he's not surprised by the outcome of the investigation. He said at the one meeting he attended, he saw no violations of the open meetings law but wasn't offended by the criticism in Taylor's report.

"There are a lot of legislators who don't fully understand the meaning of the law," Emler said. "You can always do without finger wagging, but I'm not going to say the caution is inappropriate."

Taylor said he considers the matter closed in a letter to Mike Merriam, an attorney for the Topeka Capital-Journal, which published the first reports about the gathering. Merriam had filed a formal complaint, and Taylor recommended that the newspaper and the Legislature "develop protocols" to help lawmakers fully comply with the Open Meetings Act.

Merriam noted that Kansas courts and the laws itself said the Open Meetings Act is supposed to be interpreted "liberally" to promote openness.

"Yet what they're saying is that it's too close to call, so we're not going to do anything," Merriam said. "It's ridiculous."

Many of the legislators who were invited to the dinners described them as social gatherings heavy on small talk, and Brownback and his aides repeatedly said they were comfortable that no laws were violated. However, the governor also acknowledged that he called the meetings to discuss his legislative agenda and took some questions.

Violations of the Open Meetings Act are civil, not criminal, matters. Officials who knowingly break the law can be fined up to $500 per incident.

Comments

jhawkinsf 2 years, 3 months ago

There were many who wrote in expressing their presumption of guilt in this matter. I expect they will be posting momentarily with appropriate apologies.

jafs 2 years, 3 months ago

Not at all.

If you read the article carefully, you'll see that they did in fact violate the act - the DA found they didn't "intend" to do so.

Seems to me that they violated it, and their intentions aren't relevant.

jhawkinsf 2 years, 3 months ago

I'm surprised at you, Jafs. You've always been a big supporter of the presumption of innocence. Yet in this case, not only has there been no finding of guilt, but there is insufficient evidence to even bring charges. Isn't that the very definition of a presumption of innocence? Yet in past threads, many presumed guilt. I just thought that now would be a good time for all those supporters of the presumption of innocence to reaffirm that belief.

jafs 2 years, 3 months ago

Nope.

Read it again - the meetings violated the Act from the legislators own descriptions of them.

And, "in some instances the legislators touched on issues before them" at the meetings.

The KOMA says that a majority of legislators are prohibited from discussing government business without public notice or access, and that's exactly what they did.

jhawkinsf 2 years, 3 months ago

And I was part of the conspiracy to kill Lincoln. :-)

Look at my comments. I didn't say this happened or that didn't happen. I was speaking about the presumption of innocence. Or, in the case of comments made on previous threads, a presumption of guilt. You, Jafs, have been a big proponent of the presumption of innocence. More so that me. Yet you seem to be backtracking on that position now. Why? Because someone said something. Hey, I just admitted being part of a conspiracy to commit a crime. Am I suddenly presumed guilty because I made a comment? All that really matters is testimony given under oath, in legal proceedings along with what can be proven to a judge or jury in a court of law. Everything else is mere conjecture.

jafs 2 years, 3 months ago

Nope again.

The DA himself said they discussed issues, which violates the Act, according to the story.

From Brownback's own description of the events, I thought they violated the Act as well - presumption of innocence doesn't mean closing one's eyes to obvious evidence.

jhawkinsf 2 years, 3 months ago

So which is it, presumed innocent or guilty?

jafs 2 years, 3 months ago

You yourself have pointed out that the legal system and jurors must operate under the "presumed innocent" principle, but that doesn't mean that the rest of us outside of that system have to do so.

In this case, from what I've read, I think it's clear they violated the Act.

jhawkinsf 2 years, 3 months ago

Good for you, Jafs. Now we agree completely. The presumption of innocence is reserved for the courtroom, where the power of the government is great. Where the government may deprive us of our right to life, liberty, property. But there is no presumption of innocence in this forum. Remember that the next time some "suspected" criminal does this, or the "police" do that. Or some politician does something stupid. Here, it's all opinion and all fair game. :-)

just_another_bozo_on_this_bus 2 years, 3 months ago

"Private dinner gatherings that Kansas Gov. Sam Brownback hosted for dozens of legislators at his official residence didn’t substantially violate the state’s opening meetings law even though they touched upon his legislative agenda, a state prosecutor said Tuesday."

The weasel word here is "substantially." The open meetings laws are a bit of a farce-- legislation is discussed in private on a daily basis, and sometimes those discussions flagrantly violate the spirit, if not the "substance" of those laws. These meetings certainly did that.

But the Shawnee County DA knew that this shot across the bow would go nowhere. His investigation was a political act, just as dropping the investigation is driven by politics. Actually following through with filing charges would have taken more political capital, and resources of his office, than are available to him. He made his political statement as forcefully as he could, and now he moves on. And government will continue to be conducted in secret until new legislation puts some real teeth into enforcing ethical behavior by our largely bought-and-paid-for legislators.

jaywalker 2 years, 3 months ago

"These meetings certainly did that."

So you were there? Or you have access to the DA's case files? Or the DA's crooked/in the pocket? You're omniscient? Clairvoyant? Or just another clown ideologue, unwilling and unable to filter political issues impartially, subsequently lacking any credibility, though deluded enough to believe you and YOUR party is on the side of the Angels...ALWAYS? If it involves "them", you've got something negative to say.
It's ironic how much you have in common with Beck, Limbaugh, and Hannity, bozo.

just_another_bozo_on_this_bus 2 years, 3 months ago

Gee, where would I be if I didn't get my daily dose of criticism from you. I'm so worthless, but with your help, someday I'll be able to reside happily in the meaningless middle that you fabricate for yourself (and for the others lucky enough to be informed of it on this here forum.)

somedude20 2 years, 3 months ago

"However, the governor also acknowledged that he called the meetings to discuss his legislative agenda and took some questions." So, Mr. Brownstone intened to break the law but..... "Many of the legislators who were invited to the dinners described them as social gatherings heavy on small talk" nothing much happened so it was a waste of tax money. Ok, feel free to keep on small talking about letting your little Yoder free in Jesus's river and how his pops (G-Dog) will sort stuff out if or when the rare case of pregnancy from rape

just_another_bozo_on_this_bus 2 years, 3 months ago

Actually, he didn't break the law, since it doesn't apply to him. But he was certainly encouraging the Republican lawmakers he invited to break the laws that applied to them.

classclown 2 years, 3 months ago

What about how the taxpayers were violated? What did it cost to run a witch hunt of this nature?

Why is this being reported by the Associated Press? Doesn't the LJW have a reporter on staff whose job it is to specifically report on stories like this? Where is he to report on the conclusion of this investigation?

attorney1776 2 years, 3 months ago

"Substantially" is the journalist's chosen text. It is not a quote. The author could just as easily selected the word "definitively" or any other word. Style and bias plays it's part for good or bad.

In a legal sense, "substantial violation" doesn't mean as gray area (as some here seem to wish), it means there was nothing to indicate any action violated the law.

"but that generally they did not intend to violate the act." This also is the journalist's interpretation. It could just as easily have been stated "that we took extraordinary precautions so as not to violate any laws."

Kudo's to the Democrat District Attorney for a fair and balanced investigation. This article should be more about his good judgement and effort to remain non-partisan. I suspect he had pressure from both sides of the political spectrum to try and sway his actions.

Strategy sessions happen with both Democrats and Republicans. If these were unlawful, we'd have representatives running around all confused and uninformed (more so than we do now). "Governors have had regular social gatherings for lawmakers at Cedar Crest for decades." These gatherings have to include both political parties.

The process worked as it was intended. Time to move on and accept the outcome in a non-partisan manner.

jafs 2 years, 3 months ago

Except that their intentions aren't the point.

According to the story, they did in fact discuss government business at a gathering to which the public weren't made aware of, or have access to, which is a clear violation of the KOMA.

just_another_bozo_on_this_bus 2 years, 3 months ago

""Substantially" is the journalist's chosen text. It is not a quote. The author could just as easily selected the word "definitively" or any other word. Style and bias plays it's part for good or bad."

So, you were there when the DA discussed this case in front of this reporter?

jhawkinsf 2 years, 3 months ago

Read attorney1776's second paragraph. If, as his name indicates, he is an attorney, and we all know that there are times when attorneys in legal proceedings use words in ways lay people might not use them, then he wouldn't need to have been there. Just understanding that perhaps, in this instance, the phase "substantial violation" might mean something different in a legal setting than you or I might understand the term. At least that's how I read his second paragraph.

just_another_bozo_on_this_bus 2 years, 3 months ago

He claims that the words used in this article were those of the journalist, not of the DA. So, either he's reading the text of the press release, or he was there, or he's just guessing (even if it is an "educated" guess.) Which one is it?

And keep in mind that the DA talking to reporters about his decision to end the investigation without any charges is not, in itself, a legal proceeding, so using the term "substantially" does not have to carry any legal weight.

jafs 2 years, 3 months ago

If they really didn't violate the Act, why wouldn't the DA just say that?

Including the term "substantially" indicates to me that they did violate it, but somehow not "too much".

jhawkinsf 2 years, 3 months ago

"If they didn't really violate the Act, ... " If they did violate the Act, why wouldn't the DA simply charge them?

My best guess is that there might be some evidence, maybe, perhaps, if you hold that chad up to the light, that perhaps we can divine the intent, etc. But not enough evidence to charge. Not enough to bring this to trial. Not enough evidence to convict. That, with the presumption of evidence that we all enjoy, equals what, in our system?

just_another_bozo_on_this_bus 2 years, 3 months ago

As I alluded to above, my guess is that the DA never intended to file charges. He was primarily making the political statement that Brownback and the Republicans in the legislature were flouting the open meetings laws, but he lacks the political capital, and probably the resources within his office, to take on a full prosecution of all involved.

So, statement's been made, and we'll see if it has any effect on how government business is conducted.

jhawkinsf 2 years, 3 months ago

Well, if you're right, and the DA never had any intention of filing charges, then that raises some ethical questions in regards to his behavior. If he never intended to file charges, his behavior might be characterized as an abuse of power, or a witch hunt. I'm not willing to go there without further evidence.

just_another_bozo_on_this_bus 2 years, 3 months ago

It's pretty obvious that the open meetings act was violated by these meetings. I don't see anything unethical about the DA investigating it, even if he knew at the outset that prosecution would be politically difficult if not impossible. DA's take on investigations all the time that, even though there is clear evidence of wrongdoing, they decide not to prosecute, for a wide variety of reasons.

jhawkinsf 2 years, 3 months ago

You might be right. Maybe. Perhaps. I guess. Shoulders shrugging.

jafs 2 years, 3 months ago

We don't have to divine intent.

From the DA's own statements, they violated the Act - I don't know why he wouldn't charge them for it.

What maybe, perhaps, etc. are you talking about? The DA said they discussed "issues", and Brownback said they discussed his legislative priorities and ideas. That's exactly the sort of thing they're not supposed to talk about at these meetings, without public knowledge and access.

Singletrack 2 years, 3 months ago

That's not right at all. Jurisprudence around KOMA defines two types of violations: technical and substantive. The report found technical violations but not substantive.

"Patterson and Hiatt said the gatherings skirted a substantive violation of KOMA by 'the slimmest margin.'"

jafs 2 years, 3 months ago

What does that mean exactly, "technical" violations? And, why don't they count?

Singletrack 2 years, 3 months ago

There is a section in the report that defines that for you.

Singletrack 2 years, 3 months ago

"These gatherings have to include both political parties."

That's not accurate, either. The full report off the DA is on cjonline.com.

Cant_have_it_both_ways 2 years, 3 months ago

It is sad so much was spent on this witch hunt, given to rich lawyers, when they could have given it to some Obama supporting moocher in the form of welfare, thus boosting the economy of Walmart in the name of helping the less fortunate. Shame, shame, shame.

Larry Sturm 2 years, 3 months ago

Weall know that their were violations you can't have that many legislators at one meeting and not have violations. The problem is the burden of proof falls on the prosecutor.

Tracy Rogers 2 years, 3 months ago

It's becoming painfully obvious that every day laws and rules that apply to Joe Citizen, do NOT apply to politicians.

lawslady 2 years, 3 months ago

The DA said they did violate the KOMA - he just decided the violation was not intentional enough to cause him to levy fines (which is about all the punishment that can be done by a prosecutor - a mandamus/injunctive order would simply have a court's agreement that there was a violation and order future compliance). And those fines aren't high ($500 each violation). See K.S.A. 75-4320.

There is no requirement that a violation of the KOMA be intention. See Palmgren, 231 Kan. at 536-37. However, the concept of a "technical violation" of the KOMA is court created, and has been around for a long time. See Stevens v. Board of Reno County Comm'rs, 10 Kan.App.2d at 526). It is basically a "first bite" rule. This was a predicatable outcome, given all the facts and political land-mines involved. But anyone who has been over at the state house knows first hand that Legislators violate the KOMA every day as a majority of the various committees talk about bills together, behind closed doors, at meals, in the halls, etc.

If the Legislators get more training on the KOMA perhaps they will follow it better in the future. Or they could act to amend the Act so it clearly does not apply to them - or at least use current authority to adopt senate/house rules each session that exempt all their committees from the KOMA - right (see K.S.A. 75-4318(a)).

Although he may have been involved with it, the Governor cannot violate the KOMA. A single person is never subject to it. It applies only to public BODIES (which requires at least two persons).

For more info see the guidlines on KOMA at the AG's web site; http://ag.ks.gov/legal-services/open-govt

jafs 2 years, 3 months ago

Thank you.

Kind of what I figured - they don't follow it, and they escape any sort of consequences for not doing so.

KSWingman 2 years, 3 months ago

The county attorney does not have the authority to levy fines. Taylor's office or the Attorney General's Office would have to file lawsuits in Shawnee County District Court, with maximum award of $500 per legislator, plus court costs, IF the court found for the petitioner (prosecutor).

How many hundreds of thousands, if not millions, of Shawnee County taxpayer dollars should Taylor spend on this issue?

just_another_bozo_on_this_bus 2 years, 3 months ago

"What ever happened to ignorance of the law is no excuse?"

I tried to find a video of the Steve Martin "I forgot armed robbery is illegal" routine, but I was unsuccessful.

verity 2 years, 3 months ago

I'm with you, #1 Grandma. I had the same thought.

Don't think that's going to work when you and I try to use it as an excuse.

Singletrack 2 years, 3 months ago

Read the report. The investigators found insufficient evidence to support a cause of action for substantive violations as defined by case law, but found technical violations that warranted remedial action.

jafs 2 years, 3 months ago

This sort of nonsense would never fly outside of political circles.

Imagine that you have committed a crime, but then claim you didn't understand the law, and didn't intend to break it. Does anybody think that would result in no punishment?

It's even worse in this case, because the law in question is one that all legislators should understand quite well, whereas there are many laws that the average citizen may not be aware of at all.

just_another_bozo_on_this_bus 2 years, 3 months ago

During any opening of a new legislative session, one of the top agenda items should be educating legislators about the intent and substance of these laws. There is absolutely no excuse for any legislator violating them due to ignorance of them.

jafs 2 years, 3 months ago

Amen.

And, even if they were ignorant of them, they still violated them, and should be fined, in my opinion.

Kirk Larson 2 years, 3 months ago

Headline should read: AG confirms republican legislators ignorant of the law.

Sparko 2 years, 3 months ago

The law was definitely violated; in some ways, the lack of meaningful sanctions is a worse violation. Who investigates a partisan DA?

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