Media attorney, Lawrence school board president have opposing views on open meetings concern
photo by: Journal-World
When a Journal-World reporter asked the president of the Lawrence school board earlier this month whether she had ruled out making cuts to the district’s administration to help with a budget crunch, the response was unusual.
She couldn’t say because she was worried her answer might violate the Kansas Open Meetings Act.
Why? Because, in part, the reporter had also asked the same question of the other six members of the Lawrence school board.
This past week, Max Kautsch, a media attorney and president of the Kansas Coalition for Open Government, said that was both a novel response and an inaccurate one under Kansas law. The board president’s concern centered on a prohibition, under the Kansas Open Meetings Act (KOMA), against a series of separate communications involving elected leaders, which taken together can result in a meeting occurring outside the public eye. But Kautsch said the prohibition does not apply to communications with media.
“KOMA’s prohibition against ‘serial communications’ is simply inapplicable to a media outlet posing questions to individual members of the school board related to matters of public concern,” Kautsch said.
The Journal-World reporter did not ask board members as a group for their responses, but rather asked each board member in an individual email. The Journal-World asked the questions in advance of a March 25 public hearing where the board is asking the public to comment about whether to close two schools as a way to address the district’s budget issues. As the Journal-World recently reported, the district’s teachers and staff unions, as well as several members of the public, have asked the board to also consider making cuts to the administrative budget, but thus far the board has not substantively discussed the topic.
This past week, Board President Shannon Kimball said she still has some concerns about whether it is appropriate for a majority of board members to speak about such subjects outside of a public meeting. Kimball said she thought the board had already had that discussion at its meeting on Feb. 21, when the superintendent presented his budget recommendation that did not include administrative cuts, and at that time had chosen not to pursue cuts to administration.
“But because of where we are in the conversation and the way the question was asked, I personally felt that it was too close to asking board members to commit to whether they would bring that issue up and try to put it back on the table when the board had already had a discussion about that and had chosen not to do so,” Kimball said.
The newspaper asked the board members whether they had ruled out cuts to administration, and, if not, whether they were considering the unions’ requests that the board consider administrative budget reductions through restructuring, position cuts and/or salary reductions.
Chad Lawhorn, editor and publisher of the Journal-World, said he appreciates Kimball’s respect for the Kansas Open Meetings Act, but that the newspaper’s question was fully in compliance with the letter and the spirit of the law.
“It was an important question because the public benefits from knowing the mindset of board members ahead of this public hearing,” Lawhorn said. “It allows members of the public to be prepared and put their best foot forward at that hearing, which ultimately is a benefit to the board.”
One other board member, Past President Erica Hill, echoed Kimball’s concerns and declined to answer questions from the Journal-World on the same KOMA grounds. Two board members did answer the questions, saying they had not ruled out administrative cuts, and three did not provide responses.
Kautsch said he is concerned that such a stance from school board members is not only legally “baseless,” but could have the effect of stifling debate on important issues.
“Such a suggestion has a chilling effect not only on board members’ willingness to discuss issues crucial to the public interest, namely, the ongoing sustainability of the district’s schools, but also on the public’s right to know how taxpayers dollars are spent,” Kautsch said.
Kimball’s concern, more specifically, was that the reporter could serve as an intermediary between a majority of the school board members and thereby cause a serial meeting to occur, which would violate KOMA.
“It’s also clear that a serial meeting can take place by means of a third-party intermediary,” Kimball said.
But Kautsch said the law doesn’t consider reporters to be intermediaries. He said that the numerous attorney general opinions discussing what constitutes an “interactive communication in a series” illustrate the conduct the prohibition is designed to prevent: backchannel communications between elected officials resulting in consensus on an issue with an intent to circumvent discussion of that issue in public. He said it was “troubling” that Kimball, who has a legal background, would suggest a reporter could play that role.
For her part, Kimball said that if the question were phrased slightly differently or asked in a different context — namely not after she thought the board had already decided on the issue — she would feel more comfortable answering it. While she emphasized that she thought it was in the public’s interest if board members share their positions with each other at the board table, she also said she saw the importance of local media.
“There are many, many communities that don’t [have local media], and I think that does a disservice to both districts and their patrons to not have a place where people can read about and understand what’s going on,” Kimball said.
Hearings for the two proposed school closures, Broken Arrow and Pinckney elementaries, will take place on March 25. The board will continue its discussion regarding the closures at its meeting March 27. The board won’t approve the district’s budget until August or September, following the annual budget public hearing.