Archive for Wednesday, October 24, 2012

DA says decision in Shawnee open meetings case due soon

October 24, 2012

Johnson County District Attorney Steve Howe said his office will rule “fairly soon” on whether Shawnee Mayor Jeff Meyers and members of the City Council violated the Kansas Open Meetings Act through their discussions about a July 9 appointment to the council.

Howe was asked about his office’s investigation of the Shawnee KOMA complaint prior to an Oct. 18 training session on KOMA compliance that attracted about 80 city officials from Johnson County municipalities to the county administration building in Olathe.

Howe scheduled the two-hour session and invited all elected and nonelected city officials to attend after fielding a number of KOMA complaints in recent months. Shawnee officials attending were City Manager Carol Gonzales; Keith Campbell, city clerk; Ellis Rainey, assistant city attorney; Vickie Charlesworth, assistant city manager; Katie Killen, assistant to the city manager; and council members Dan Pflumm, Jim Neighbor and Alan Willoughby.

Some critics of local government voiced concern that Howe, who has previously waived charges against KOMA violators on the condition that they attend compliance training, would drop the Shawnee case if enough local officials attended the Oct. 18 training session. But Howe said that was not the case and that his office would definitely be issuing a statement on whether city officials violated KOMA.

The Shawnee KOMA investigation was prompted by a July 30 letter to Howe from Shawnee resident Tony Lauer, who also attended the Oct. 18 training session.

Lauer attended the July 9 special meeting of the Shawnee City Council, during which applicants for appointment to a vacant Ward 2 seat were interviewed. The council then voted 4-2 to appoint Willoughby, the uncle of Mayor Meyers’ wife.

Ward 4 council member Michelle Distler, who cast one of the “no” votes, said she did so because 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.

Distler added that similar information had circulated prior to the earlier appointment of Neighbor to a vacant Ward 1 seat.

After being questioned by Shawnee resident Gregg Snell during the July 9 meeting, Meyers acknowledged that he had promoted Willoughby’s appointment during one-on-one conversations with a few council members prior to the meeting. Because those discussions had not taken place during a “meeting” involving a majority of the governing body, Meyers said, he did not believe KOMA had been violated.

During the Oct. 18 training session, however, Howe said KOMA can be triggered through “serial communications” that grow to include a majority in discussions of an issue on which binding action is to be taken.

In other words, if the two or three members Meyers acknowledged discussing the appointment with talked to another two or three members, those discussions would constitute an open meeting, requiring prior notification of all parties who have requested meeting notices.

The question, Howe said, is who has actually violated KOMA in such instances. “We can find the entire body in violation or individuals,” he said.

One of the weaknesses of KOMA enforcement, however, is that penalties, which can include fines of up to $500 per violation, are almost never levied, said Richard Gannon, government affairs director for the Kansas Press Association.

Gannon, who attended the Oct. 18 session, noted another weakness of the act involves the 21-day span during which actions arrived at through illegal meetings can be voided. During the session, Howe acknowledged that it was virtually impossible for a KOMA complaint to be investigated and ruled upon during that span.

Gannon said yet another KOMA weakness involves the ability to investigate violations that take place during executive sessions. In the past, the KPA has supported legislation that would require executive sessions called by local governing bodies to be recorded so that they could be reviewed by the courts to determine if KOMA has been violated. But such legislation “has gone nowhere,” Gannon said.

Howe prefaced his remarks to the public officials attending the Oct. 18 session by saying, “There is a lot of frustration in the public about the accountability of government.”

Transparency is one of the hallmarks of democracy, he added. Thus, the Kansas attorney general has stated that “KOMA should be interpreted liberally to promote transparency,” Howe said.

Fortunately, the district attorney added, few people seek public office with the intent of violating the state’s open meetings act. When they do so, it’s generally out of ignorance, he said, so “our intent is (to conduct KOMA training sessions) fairly consistently.”

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