By Bryan Lowry and Hunter Woodall
Kansas Secretary of State Kris Kobach's use of private email for a presidential commission could bring him into conflict with a 1-year-old state law meant to increase government transparency.
Kobach, a candidate for Kansas governor, told ProPublica last week that he was serving on President Donald Trump's voting fraud commission as a private citizen rather than as Kansas secretary of state and that he was using his personal gmail account for commission business rather than his official state account.
Kobach, a candidate for Kansas governor and vice chair of the commission, said using his state account would be a "waste of state resources."
The ProPublica report scrutinized the use of private email by commission members and their possible violation of a federal statute that requires any federal government business conducted by private email to be forwarded to a government address within 20 days.
But Kobach may also be running afoul of a state law, enacted last year, that made Kansas officials' private emails subject to the Kansas Open Records Act, or KORA, if they pertained to public business.
"The question about the private email is not as important as whether or not Kobach is acting as the secretary of state," said Max Kautsch, a Lawrence attorney who specializes in First Amendment and open government issues.
Kautsch, who served on a special state panel that crafted the legislation, called the notion that Kobach, the state's top election official, was serving on the voting commission as a private citizen "obviously totally insane." He said Kobach would be highly vulnerable to lawsuits.
"This is why the law was changed, so that officials can't come up with reasons for keeping the public in the dark that aren't credible," Kautsch said.
If Kobach is serving on the commission in his official capacity as Kansas secretary of state, then all of his emails related to the commission would be available to the public under the 2016 law. The May announcement from the White House on the formation of the commission noted his position as Kansas secretary of state.
The controversial commission has faced criticism from voting rights advocates who say its purpose is to promote questionable claims about widespread voter fraud and to help craft new restrictions on voting. Kobach, who served on Trump's transition team, was fined $1,000 by a federal judge earlier this year as part of an ongoing case for misrepresenting the nature of documents he shared with Trump after the election that laid out proposed changes to federal voter registration laws.
The Kansas City Star requested records related to the commission from Kobach's office in May, but his office denied that request a month later on the grounds that such records did not exist.
Kobach's spokeswoman, Samantha Poetter, reasserted the claim that Kobach was serving on the commission "in his personal capacity" in an email late Monday afternoon. She indicated that the records were being forwarded to federal personnel.
"Commission members are considered 'Special Government Employees' under federal law. The members of the Commission were never issued federal email accounts, but they received ethics training and were instructed that they could continue to use personal email accounts as long as they ensure that all emails relating to commission business are copied or forwarded to a federal government email account," Poetter said.
"Because Secretary Kobach is serving on the Commission in his personal capacity, not as a representative of the State of Kansas, he determined that it would be inappropriate to use his Kansas state email account. The title 'Kansas Secretary of State' follows his name in some printed material simply because it identifies to the reader who he is. It does not indicate that he is conducting Kansas State business while serving on the Commission," Poetter said, contending that other government officials on the commission are similarly not serving in their official capacities.
"Secretary Kobach's personal emails concerning the Commission are therefore not subject to KORA, since he is not conducting public business on behalf of the State of Kansas while serving on the Commission," she said.
Poetter, who serves as spokeswoman for both Kobach's state office and his campaign, sent the statement from her campaign email address as opposed to her official state account.
The state law was crafted after it was revealed that Gov. Sam Brownback's budget director had shared detailed information on the state budget with lobbyists who had ties to the governor via a private email address weeks before the budget was unveiled to the public. The controversy surrounding 2016 Democratic presidential candidate Hillary Clinton's use of a private email server as U.S. secretary of state also contributed to the bipartisan push to update the state open records law.
Rep. John Barker, an Abilene Republican and retired judge, questioned what Kobach's motivation was for using a personal email account.
"I personally think it's a transparency issue," said Barker, who participated on the panel that crafted the legislation. "But whether or not it's a violation of the '16 law, I don't know. I've not done enough research on that."
Kautsch said that Attorney General Derek Schmidt, who has the power to investigate KORA violations, championed the 2016 law, and the questions about Kobach's private email use could pit the two Republicans against each other.
Schmidt's spokeswoman said that she couldn't comment on whether Kobach's emails on the commission were subject to the new law, but she noted that people who think an open records request was improperly denied may submit complaints to the attorney general's office for investigation.
Doug Anstaett, the executive director of the Kansas Press Association, accused Kobach of flouting the year-old law.
"He has created an exception out of whole cloth and he is dead wrong," Anstaett said. "You can't just declare that you are a private citizen when you are a public servant serving the president of the United States. ... He's serving because of his position of secretary of state."
Anstaett said the association would weigh whether to take legal action against Kobach.
"It seems like to me the Kansas law, the way that it's written, that if you use some kind of subterfuge like this to avoid Kansas open records law, then you are violating the law," said Anstaett, who also contributed to the panel that crafted the legislation.
However, the Republican lawmaker who carried the bill on the Kansas Senate floor in 2016 did not agree that Kobach was serving on the federal panel in his official state capacity.
"I wouldn't say serving on a committee would necessarily be the work of the secretary of state," said Sen. Molly Baumgardner, a Republican from Louisburg. "I would prefer that there'd be separation. ... As I understand it, this committee is looking at it from a national standpoint."
Baumgardner said the commission needs to ensure that the emails are available through the federal Freedom of Information Act instead of the state law.
"They should be accessible through FOIA because I do see this committee as being federal as opposed to the state. ... It seems to me there should be a federal email," Baumgardner said.
House Minority Leader Jim Ward, a Wichita Democrat, said Kobach's "exception is not justified by the law."
"It's absolutely absurd," said Ward, a candidate for governor who played a key role in crafting the 2016 law. "And if that exception were true, it would make the new law irrelevant because you could always claim, 'I'm a private citizen.' We're all private citizens, but we hold public offices."
(c)2017 The Kansas City Star (Kansas City, Mo.)