Kansas Lawmakers Keep Emails About Public Business Private

by | February 3, 2015

By Bryan Lowry

Voting mostly along party lines, the state House rejected an amendment that would have made private e-mails by public officials about official state business open to public scrutiny.

Rep. Jim Ward, D-Wichita, offered the amendment Monday after The Eagle reported last week that Gov. Sam Brownback's budget director had e-mailed a draft of the state budget to two lobbyists and several top administration staffers from a private e-mail account on a private computer. The communication is exempt from Kansas Open Records Act because of a loophole.

"It's come to our attention recently that private business is being done on private e-mail accounts. What this (amendment) does is say we don't care what e-mail account you use ... if you're doing public business that's subject to KORA," Ward said. "It is a transparency issue. It is fundamental to a democracy that people know how decisions are made."

Ward's proposal, which would have made private communications by public officials open records when a substantial public interest can be shown, failed by a vote of 86-30.

Nine House members were absent or did not vote. Only four Republicans -- Rep. Don Schroeder, R-Hesston; Rep. Tom Sloan, R-Lawrence; Rep. Stephanie Clayton, R-Overland Park; and Rep. Larry Campbell, R-Olathe -- voted in support of the measure. No Democrats opposed the bill.

Ward tried to attach his amendment to a bill that extended exceptions to the open records act. The bill itself passed by voice vote.

Twenty-six states consider private e-mails by public officials on official business to be public records. Asked Friday if Kansas should follow suit, Brownback, who said he primarily uses a private cellphone, resisted the idea.

"You got to then figure out and parse is this contacting my wife about us going to Kansas Day public or private business and I -- that's just -- I would have questions about doing that," he said.

His office would not comment about Ward's proposal Monday.

Rep. John Carmichael, D-Wichita, called the use of private e-mail disturbing.

"The public's business ought to be done in the sunshine," he said.

Rep. Scott Schwab, R-Olathe, asked Ward if his amendment would apply to members of the House and Senate. Ward said that yes, if substantial interest could be shown, such as a large number of lawmakers discussing the budget on private e-mails, then it would apply.

Schwab said he understood Ward's intent, but without a clear line drawn about when the policy would apply he was unwilling to subject his own e-mail to such scrutiny.

"If someone wants to use this as political retribution to me because I sent an e-mail to the Appropriations Committee saying, hey, I need to know how this is going to affect my school district and perhaps I'm more willing if you all would include this ... I'm not willing to subject my e-mail to that simply because I'm working with colleagues to try and form an education plan," Schwab said.

Schwab said the Legislature could return to the question of whether a lobbyist should have been included in the budget planning process at a future date. He was referring to the inclusion of David Kensinger and Mark Dugan, two former Brownback aides, on Sullivan's budget e-mail. Both are lobbyists now.

Brownback said Friday that his administration consulted broadly on the budget and that Kensinger and Dugan had offered frank advice.

Rep. John Barker, R-Abilene, chair of the House Judiciary Committee, which passed out the bill, chastised Ward for not introducing the amendment during the committee process or introducing it as a bill on its own.

"If it's such a good idea, put it in a bill and let's debate in committee ... and if some point in time it comes out of committee, we'll vote on it," Barker said.

Ward pointed out that the Judiciary Committee worked on the bill before Sullivan's e-mail had been made public.

Later Mondy afternoon, he introduced the legislation as its own bill.

Senate Democrats plan to introduce a similar bill this week.

(c)2015 The Wichita Eagle (Wichita, Kan.)