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Sam Brownback, Kansas Governor, Didn't Break Rules With GOP-Heavy Private Dinners, DA Says

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TOPEKA, Kan. — A prosecutor publicly scolded Kansas legislators Tuesday for being reckless and uninformed about the state's open meetings rules but said he only could prove they committed technical violations of the law during private dinners Gov. Sam Brownback hosted at his official residence.

Shawnee County District Attorney Chad Taylor said he didn't have enough evidence to show that substantial violations of the Kansas Open Meetings Act occurred during the seven gatherings in January at Cedar Crest. Taylor said the dozens of lawmakers interviewed by his office couldn't remember enough details about the events collectively for him to build a case for further legal action.

Brownback held the meetings for members of 13 legislative committees, inviting more than 90 lawmakers, almost all fellow Republicans. A report issued Tuesday by the Democratic district attorney's office said legislators hadn't acted in bad faith because they didn't fully understand the open meetings law.

"We landed in a spot to where we felt as though there were substantive violations," Taylor said during a news conference. "However, we were unable to substantiate them."

Taylor recommended that legislators receive better training about the open meetings law, consult in the future with the attorney general's office and develop guidelines in legislative rules for events.

"We're not saying ignorance is an excuse this time," he said. "What we are saying is that technical violations occurred."

News media representatives expressed disappointment, noting that Kansas courts and the open meetings act itself say the law is to be interpreted "liberally" to promote openness in government.

"Yet what they're saying is that it's too close to call, so we're not going to do anything," said Mike Merriam, an attorney for the Kansas Press Association and The Topeka Capital-Journal, who filed a complaint with Taylor in late January. "It's ridiculous."

But Taylor said Kansas courts don't order corrective action or impose fines when only technical violations are involved. And, he said, gathering a majority of a legislative body in one place isn't a violation unless they interact and discuss business.

The Kansas Open Meetings Act generally prohibits a majority of legislative bodies from discussing government business without public notice or access to the meetings. Taylor acknowledged from the outset of his investigation that Brownback, as an individual, couldn't violate the law, even though he set up the gatherings.

Also, violations are civil, not criminal, matters, and officials who knowingly break the law can be fined up to $500 per incident. Prosecutors also can seek a court order or an agreement spelling out the steps officials will take to avoid future violations, without pursuing fines.

But Doug Anstaett, the Press Association's executive director, said it has become most likely for officials to be told they need to improve their training or procedures and receive an admonition "to go and sin no more" after being warned that they've committed technical violations of the open meetings law.

Taylor's office issued such a warning in June to the Topeka Metropolitan Transit Authority for failing to notify news organizations about a meeting at which it approved a separation agreement with its former chief executive officer. In 2005, Taylor's predecessor as district attorney said no violations occurred when the Kansas attorney general met privately with small groups of State Board of Education members about issues.

"This decision is the kind of hollow victory those of us who fight for open government have come to expect," Anstaett said.

Many of the legislators who were invited to the dinners described them as social gatherings heavy on small talk, and Brownback and his aides repeatedly said they were comfortable that no laws were violated. However, the governor also acknowledged that he called the meetings to discuss his legislative agenda and took some questions.

The report from Taylor's office said Brownback and his staff were aware of the risks of violating the open meetings law and "made some attempts" to avoid them.

Brownback spokeswoman Sherriene Jones-Sontag said, "The district attorney now has confirmed there were no substantive KOMA violations and that the governor and his staff clearly understood KOMA and took the appropriate precautions."

But Taylor's report said legislators who participated in the events "recklessly danced" close to violating the open meetings law, and the violations that did occur were technical "by the slimmest margin." During his news conference, he said he was troubled – as someone who has to enforce laws passed by lawmakers – about their collective inability to recall specific details.

Senate Majority Leader Jay Emler, a Lindsborg Republican, said he's not surprised by the outcome of the investigation. He said at the one meeting he attended, he saw no violations of the open meetings law but wasn't offended by the criticism in Taylor's report.

"You can always do without finger wagging, but I'm not going to say the caution is inappropriate," Emler said.

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Online:

Kansas Legislature: http://www.kslegislature.org

Kansas governor: https://governor.ks.gov/

Shawnee County district attorney: http://www.snco.us/da/

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Follow John Hanna on Twitter at www.twitter.com/apjdhanna

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