Topeka Republican leaders in the Kansas Legislature told a Democratic district attorney Tuesday that lawmakers can’t be forced to turn over their records or answer questions in the investigation of private meetings at Gov. Sam Brownback’s official residence.
House Speaker Mike O’Neal, a Hutchinson Republican and an attorney, said in a statement that he’ll voluntarily cooperate with Shawnee County District Attorney Chad Taylor’s investigation into the meetings and has urged fellow legislators to do the same. But he also said that precedents meant to protect legislators’ ability to speak freely while in session can’t be “compromised for political gamesmanship.”
“We will expect the DA to refrain from distracting legislators from their legislative duties,” his statement read.
Taylor is investigating whether seven meetings that Brownback hosted in January at Cedar Crest for Republicans on 13 legislative committees violated the Kansas Open Meetings Act. Invitations went to more than 90 of the Legislature’s members.
Brownback spokeswoman Sherriene Jones-Sontag said Tuesday that the governor remains confident the meetings didn’t violate the law.
The district attorney sent a letter last week to Brownback’s office and all the state senators and House members, directing them to maintain records and electronic files that could be potential evidence and “to err on the side of preservation.” Taylor asked legislators to respond, individually, by Tuesday.
O’Neal advised legislators not to respond immediately, hoping for a single legislative response. The result was a letter from him and Senate President Steve Morris, a Hugoton Republican, citing a provision of the Kansas Constitution that says lawmakers can’t be subpoenaed or subjected to other proceedings in civil court cases while they are in session.
The letter also cited a section of the state’s Open Records Act that allows lawmakers to keep their documents confidential and said legislators have the discretion not to turn them over.
In a statement, Taylor said while “reasonable minds may differ” on the legal issues raised by GOP leaders, he is pleased that they plan to cooperate with the investigation.
Democratic legislative leaders did not sign the letter to Taylor. Both Senate Minority Leader Anthony Hensley, of Topeka, and House Minority Leader Paul Davis, of Lawrence, said they replied individually.
“I don’t think the Legislature should receive any special treatment,” said Davis, an attorney.
The Open Meetings Act generally prohibits a voting majority of a legislative body from discussing government business without giving the public notice or access to the meetings. Taylor has said the act does not apply to Brownback as an individual, and that the alleged violations are civil, not criminal, matters. Officials found to have knowingly broken the law can be fined up to $500 per incident, though such a penalty is unusual.
Brownback also had a dinner gathering Monday evening, but he invited a bipartisan group of legislators with no apparent ties to specific committees and permitted an Associated Press reporter and photographer to observe. He described the gathering as typical.
After dinner, Brownback made about 10 minutes of remarks about legislative issues, mentioning a few specific proposals and taking a few questions. Lt. Gov. Jeff Colyer, who helped draft a plan for overhauling the state’s Medicaid program, briefly discussed the effort.
Mike Merriam, an attorney for the Topeka Capital-Journal who has extensive experience with open meetings issues, said the Monday gathering didn’t appear to violate the law because a majority of a specific committee didn’t attend. But, he said, if similar events happened in previous gatherings, when majorities of committees were present, it was a “trigger point” for a violation.
“That is a key distinction,” said Merriam, who filed a complaint with Taylor about the January meetings on the newspaper’s behalf.
Monday evening’s event fit with many of the descriptions given in AP interviews with two dozen lawmakers invited to the January gatherings. Brownback mentioned the meetings law in his Monday remarks and asked two legislators to warn their colleagues should they be in danger of violating it.
His aides have said the January events were social and said the steps the governor took prevented potential problems. Merriam said such steps were “meaningless.”
Rep. Charles Roth, a Salina Republican who attended the first gathering Jan. 9 with fellow members of the House Pensions and Benefits Committee, said he was “uncomfortable” with the gathering. He said it featured a “pep talk” from Brownback, urging the lawmakers present to pass pensions legislation.
Roth said his impression was that the gathering violated the meetings law, “but I’m not a lawyer.”