Archive for Tuesday, July 31, 2012

DA’s office investigating alleged open meetings violation

Alan Willoughby takes the oath of office July 9, after being appointed to a vacant Ward 2 seat on the Shawnee City Council.

Alan Willoughby takes the oath of office July 9, after being appointed to a vacant Ward 2 seat on the Shawnee City Council.

July 31, 2012

Opinion and amendment

In 1998, former Kansas Attorney General Carla Stovall issued the following opinion about serial communications among public officials:

"A series of meetings each of which involves less than a majority of a quorum of a public body, but collectively totaling a majority of a quorum, at which there is a common topic of discussion of the business or affairs of that body constitutes a meeting for the purposes of the (Kansas Open Meetings Act)."

State law was amended in 2008 by Senate Substitute for House Bill 2947. It defines a meeting under KOMA as interactive communication or meetings in a series that involve "a majority of the membership of the body."

The Johnson County District Attorney’s Office is investigating allegations that Shawnee Mayor Jeff Meyers and members of the City Council discussed city business in violation of the Kansas Open Meetings Act.

The investigation was prompted by a July 30 letter to District Attorney Steve Howe from Shawnee resident Tony Lauer.

Lauer attended a July 9 special meeting, during which applicants for appointment to the Ward 2 City Council seat were interviewed. The City Council then voted 4-2 to appoint the mayor’s uncle by marriage, Alan Willoughby, to the seat.

Ward 4 council member Michelle Distler, who cast one of the “no” votes, said she did not oppose Willoughby personally. However, she explained, she was “told on (the previous) Thursday that this is who the appointment was going to be,” who would make the motion for Willoughby and who would second it.

“I cannot support this, because I cannot be involved with this,” said Distler, who added that similar information had circulated prior to the appointment of Ward 1 City Councilman Jim Neighbor to a vacant seat.

Gregg Snell, a Shawnee resident who has been videotaping Shawnee City Council meetings, asked Mayor Meyers about Distler’s implication that members of the governing body had discussed Willoughby’s appointment outside of a public meeting.

“I have not had a meeting,” Meyers responded. “I have had discussions with different council members about applicants.”

Under further questioning by Snell, Meyer acknowledged that he had discussed “good candidates” that he was “in favor of,” including Willoughby.

Meyers later told The Dispatch he had talked to “two, maybe three” members of the City Council about the appointment process, but he said he did not believe he was violating the Kansas Open Meetings Act because “you can talk to individual council members.”

Meyers added that he thought a discussion had to involve “two or more council members” at the same time to fall under the open meetings act.

According to a 1998 opinion from then Kansas Attorney General Carla Stovall, the act also covered one-on-one meetings, in person or by phone, if those meetings deal with the same topic and involve a majority of a quorum. In the case of Shawnee City Council, three members represent a majority of a quorum.

However, the Kansas Legislature amended the law in 2008 to define meetings under the act as those involving "a majority of the membership of the body."

The term “serial communications” has been coined to describe meetings held in a series by phone or email, said Howe. If his investigation determines members of the Shawnee City Council engaged in serial communications involving a majority of the governing body, they could be fined up to $500 each, he said, and “any binding action” resulting from the illegal meeting can be “voidable by the courts.”

Earlier this year, Howe’s office found that the Gardner City Council had conducted illegal meetings twice last summer to discuss a request from a candidate for city administrator and employee pay ranges. The first issue was discussed through serial emails, the latter during a session that was closed without legal justification.

Howe said he agreed to waive charges against the Gardner officials on the condition they attend training on Kansas Open Meetings Act compliance.

Howe declined to make a statement at this point on whether Shawnee officials appear to have violated the act. But he said his office would issue a press release after a determination is made.

Correction: This post originally reported in error that an open meeting as defined by the Kansas Open Meetings Act must involve only a majority of a quorum.

Comments

Tony Lauer 5 years, 11 months ago

For what it's worth, I've posted a portion of my letter to Mr. Howe, referenced above, at: http://blog.shawneefwiw.com/?p=44

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Tony Lauer 5 years, 11 months ago

I have reached out to the Shawnee Dispatch to see if there is a way to remove the "(anonymous)" next to my username. It does not appear that there is any user level ability to add my real name, Tony Lauer. As the subject of the discussion is open-ness, I'd like to be OPEN about who I am.

Additionally, my logs show additional text added to the story, likely to clarify or provide additional information regarding the ammendment to KOMA in 2008. Yes, HOUSE BILL No. 2947 did amend KOMA, KSA 75-4317a to state "a majority of the membership of the body" is a meeting for purposes of triggering KOMA.

While Mayor Meyers has reportedly said that he talked to "two, maybe three" members. The critical math is the sum of all members involved in the serial communication. That number, in my opinion, needs to be greater than 5. So the question becomes, how many people did the "two, maybe three" speak to?

I'd also like to present my uneducated position that conflicts with what Mr. Howe has reportedly stated. According to my understanding of the following text from the Attorney General, "Action to void must be filed within 21 days of the alleged violation/meeting". Some may find this math curious. The number of days between the OPEN public meeting, and the date that I submitted the letter of violation, was 21. My opinion is that any potential illegal meeting cannot be "voidable by the courts", as the math is likely greater than 21. I will obviously yield to Mr. Howe on this particular point, for what it's worth.

Thanks, Tony Lauer (ShawneeFWIW) Shawnee, Kansas

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Tony Lauer 5 years, 11 months ago

I just noticed an error in my text above. According to the AG, "Majority is one more than one-half of the membership. When counting the number of members, vacant positions must be counted as well." The magic number appears to be 5 for us to satisfy the meeting definition for KOMA. My apologies for the error.

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