photo by: Dylan Lysen/Lawrence Journal-World

The Lawrence school board has appointed Erica Hill, left, as board president and Shannon Kimball, right, as board vice president for the 2021-22 school year.

Questions about the conduct of the Lawrence school board mounted on Thursday as an attorney said the district’s efforts to keep a settlement agreement secret are improper, and school board members offered few reasons for the secrecy.

On Monday evening, the Lawrence school board approved an agreement with Constellation New Energy’s gas division to settle a disputed natural gas bill resulting from the February arctic blast that resulted in extraordinarily high prices. The district had received a natural gas bill of $498,000 for the time period, compared to a more typical bill of about $55,000.

With hundreds of thousands of taxpayer dollars at stake, though, the school board voted on the settlement agreement without ever making the settlement agreement available to the public for review. After the meeting, the district again refused to provide the agreement when asked, leaving the public with no idea how much money the school board agreed to pay in disputed natural gas fees.

A Lawrence-based open records attorney said Thursday that the district was on the wrong side of the law and ultimately would have to release the information to the public.

“I do think it is settled law and I don’t think there is any legal basis for the district to not disclose the records, especially given that it involves taxpayer funds,” said Max Kautsch, a Lawrence attorney who specializes in open records law.

The Journal-World has filed an open records request for the agreement. On Thursday afternoon, a district spokeswoman said the request was being handled using a process spelled out in the confidential settlement agreement. She said the district has asked that the process be expedited.

“As soon as we get approval from the attorneys involved, we will provide you the agreement,” district spokeswoman Julie Boyle said via email.

But at that point, the decision on the settlement agreement is already final, meaning the public had no opportunity to provide input into whether the board should take the deal. While negotiations for settlement agreements often are done in closed executive sessions with attorneys, the approval of the final document must be done in a public meeting, and as a general matter of government, the public is allowed to see documents that elected officials are asked to approve via a vote.

On Thursday, several school board members acknowledged that the public didn’t have that opportunity in this case, but offered few explanations on why the documents were kept from the public. When asked how such secrecy “squares with the idea of good government,” Board President Erica Hill offered little response.

“Again, all I can say is that the matter has been resolved to all parties’ satisfaction,” Hill said.

Board member Kelly Jones said she agreed that “it is reasonable that the public wanted to preview that,” but then said she had to be cautious about what she said, indicating that the settlement agreement had placed restrictions on what the two parties could publicly say.

Several other board members did not respond to a request for comment, cut short interviews or answered by referring questions to Boyle as the district’s spokesperson or Hill as the board’s chair.

Superintendent Anthony Lewis did not respond to a request for an interview on the matter.

Kautsch said he’s not sure why the district would agree to a secret settlement after a recent court case produced a clear ruling saying such documents had to be made public. Earlier this year a Johnson County judge ordered the public release of a severance agreement regarding an Overland Park police officer who shot and killed a teenager from that community.

The judge ordered the settlement agreement released despite objections from the Overland Park government. The case largely confirmed a 1993 Kansas attorney general’s opinion that concluded settlement agreements made by local governments are public records.

But the Lawrence school district has its own history of having to release settlement agreements that were designed to be secret. In 2016, the district entered into a severance agreement with a South Middle School teacher who was accused of making racist comments. The board took the unusual step of accepting the teacher’s resignation without ever releasing his name. The Journal-World sought the name, was denied access and then filed an open records request for any settlement agreement in the matter. Ultimately, the district released the settlement agreement after receiving legal advice to do so.

At that point, the district indicated it understood it could not make secret settlement agreements, but then proceeded to do so this week.

“That is the same situation here,” Kautsch said of the two incidents. “It really makes me wonder how the school board comes to this advice. It makes me wonder who is giving them that advice.”

The school district’s general counsel is Lawrence attorney Brad Finkeldei, who also is Lawrence’s mayor. However, Finkeldei said he did not advise the district to create this most recent settlement.

“I am counsel, but I have not had any involvement in it,” Finkeldei said of the settlement agreement.

Board members said they did receive counsel on the matter, but did not name the attorney. The Journal-World previously has reported that James P. Zakoura, an Overland Park attorney, negotiated the settlement for the district. But school district officials have stopped short of saying that Zakoura advised them to make the settlement secret.

Board members — the Journal-World reached out to all seven members — offered varying responses on whether this latest secret agreement was a step backward on previous commitments the district has made to be more transparent.

“I have no comment on that,” said board member G.R. Gordon-Ross, who is leaving the board after losing his reelection bid in November.

When asked why the board would craft an agreement that sacrificed transparency as part of the deal, Hill said, “I understand what you are saying,” but said she couldn’t provide any further comment on why the agreement was crafted the way it was.

Jones said she also did not want to comment on why the agreement was crafted the way it was, but said on the question of whether the public deserves to have access beforehand to materials that elected officials are using to make decisions, she said, “in almost all cases, yes.”

She also left open the possibility that the board should have a discussion on how to proceed in the future on sensitive agreements. She said that probably should be left to Hill to decide as chair whether to put the topic on a future agenda for discussion.

“If the community provides us feedback that it wasn’t in the spirit of what they expect from the board, I’ll take that feedback and incorporate it into my decisions in the future,” Jones said. “I value that feedback.”

When asked whether the topic of how to create agreements in the future will be a board topic for discussion, Hill said “it could.”

“I think with every decision that anyone makes at any given time there is always opportunity for improvement and reflection,” Hill said.