Shawnee Dispatch

District attorney: Shawnee officials violated spirit of open meetings act

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

January 30, 2013

In a long awaited decision, the Johnson County District Attorney’s Office announced Wednesday that Mayor Jeff Meyers and most members of the Shawnee City Council violated the spirit of the Kansas Open Meetings Act.

The decision related to the July 9 appointment of Ward 2 Councilman Allan Willoughby after private council discussions that District Attorney Steve Howe labeled “backroom deals.” Willoughby is the uncle of the mayor’s wife.

Howe, noting that “this case is a close call,” did not determine any actual KOMA violations were committed. Thus, his office is not pursuing the civil penalties of up to $500 per violation authorized by statute. Even if a violation were found, Howe added, the finding would fall outside of the 21-day statutory window for voiding the council’s 4-2 vote to appoint Willoughby.

“While we conclude that a majority of the members did not act in bad faith,” Howe wrote, “we must conclude that the legislators acted out of ignorance of the applicable law.”

He recommended that all council members and Meyers receive detailed and specific training on KOMA and its application to their roles.

Calling statutory penalties for KOMA violations “a slap on the wrist,” Howe added that “the real power lies where it should: with the electors in the City of Shawnee.

“The electors will ultimately have the ability to judge the actions of the members of the city council and Mayor Meyers,” he said.

Meyers, who is not among the four governing body members up for election April 2, said he would “hold off on commenting until I actually talk to the district attorney.”

“I want to discuss some of the stuff I read (in Howe’s decision) and get clarification on some items,” Meyers said.

The KOMA controversy unfolded after Ward 2 City Council David Morris’ May 24 resignation. The selection of a successor from among five applicants was scheduled for a July 9 special council meeting. But prior to that meeting, the District Attorney’s Office found, the mayor and all members of the City Council except for Ward 2 representative Neal Sawyer engaged in conversations about who Morris’ successor should be.

Ward 4 council member Michelle Distler supported Michael Kemmling, in part because he had lost a Ward 2 race against Sawyer by only 11 votes last April. But Distler said during the July 9 special meeting that that wasn’t the only reason she voted against a motion to appoint Willoughby. Distler said she also voted no because she had been “told on (the previous) Thursday that this is who the appointment was going to be,” who would make the motion and who would second it.

During a regular council meeting that followed the appointment, resident Greg Snell grilled the mayor about Distler’s contention. And while Meyers denied having called any private meetings to discuss the appointment, he acknowledged he had discussed the issue with individuals on the council.

That prompted a July 30 letter to Howe from resident Tony Lauer, who suggested that KOMA might have been violated via the pre-vote discussions.

According to KOMA, a majority of a governing body may not engage in private discussions with the intention of reaching agreement on a matter requiring binding action by the body. The act may be violated through private group meetings or serial one-on-one communications, as took place in the case of the appointment selection.

“The evidence showed that Meyers had conversations about the open seat with (council members Mickey) Sandifer, (Dawn) Kuhn, (Jeff) Vaught and (Jim) Neighbor,” the district attorney wrote. “This led to Vaught having similar conversations with Distler and (Dan) Pflumm. ... In the end, Meyers and the entire city council, except for Councilman Sawyer, knew how the vote would probably go, prior to the actual special meeting to vote on the vacancy.”

Meyers supported Willoughby in his private discussions on the matter, while Distler and Pflumm supported Kemmling. Vaught told Meyers during one conversation that it would be difficult for him to oppose Kemmling, given the number of votes he attracted last spring. But after accusing Kemmling of repeatedly interrupting his council interrogators during an interview portion of the July 9 special meeting, Vaught voted for Willoughby. Others voting for Willoughby were Neighbor, Kuhn and Sandifer.

Meyers, who initiated the private serial discussions, “at worst, ... utilized his position to bypass KOMA to garner votes for a family member,” Howe wrote.

“A less offensive theory is that Meyers was a conduit for members to usurp KOMA,” he added. “At best, Meyers was simply ignorant of the KOMA law.”

If the council and mayor did not violate KOMA, Howe continued, “the members stood at the top of a very steep slippery slope with a KOMA violation at the bottom.”

“What is clear, however, is that the spirit of KOMA was violated, ...” he said. “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public. ... KOMA was enacted to prohibit the ‘backroom’ deals that were going on in Shawnee.

“In the future, the safest way to proceed would be to either provide the notice required of KOMA or avoid discussions where there is an exchange of ideas on the business of the City of Shawnee. But, given these facts, this office will not file an action under the Kansas Open Meetings Act. However, should future violations occur, I will reconsider this decision.”

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