Voice For Liberty

Tag: Kansas legislature

Articles about the Kansas legislature, both the House of Representatives and the Senate.

  • Sales tax increase isn’t necessary

    By Dave Trabert, Kansas Policy Institute.

    Tax

    What a difference a year makes. Last May, Governor Brownback signed historic tax reform legislation that would reduce state income taxes by roughly $800 million in its first full year. As the legislature returns this week, the debate is about how much of the last year’s tax reform will be wiped out. Instead of reducing the cost of government to implement tax reform this year, Governor Brownback and the Senate want to make the 6.3 percent sales tax permanent and eliminate the income tax deduction for home mortgage interest; they also propose 0.5 percent reduction in the income tax on the first $15,000 of taxable income in 2014 and a reduction in all marginal rates beginning in 2017 (after a billion dollar increase in sales taxes) with revenue growth above 4 percent being used to reduce rates thereafter and eventually eliminate income taxes.

    The House plan isn’t perfect but it’s better. It allows the sales tax rate to drop to 5.7 percent as promised, proportionally reduces income tax deductions, has more spending reductions and a formula that gradually eliminates the income tax altogether, using annual revenue growth above 2 percent to buy down rates.

    The goal of tax reform is to reduce the overall tax burden, not shift it. Consumption taxes are better than income taxes, but taxes will still be too high (and economic growth impaired) until we deal with the real problem of excess spending. But even some self-identified fiscal conservatives don’t want to reduce spending.

    Part of their resistance is that many people equate spending less with service cuts, but that doesn’t have to be the case. Per-resident spending varies greatly across all fifty states. Yet, every state has schools, highways, social programs, etc.; some simply do so more efficiently. States with an income tax spend 44 percent more per-resident than those without an income tax. States that spend less, tax less (and grow more). Done well, states can spend less and actually deliver the same or better services.

    In fact, Kansas would have spent $2.9 billion less last year if spending were at the same level as the average state without an income tax.

    Our “Legislator’s Guide to Delivering Better Service at a Better Price” shows legislators how to use existing cash reserves to ‘buy time’ and implement thoughtful efficiency measures to reduce costs over time. It can be done and it can be done now.

    The problem with implementing income tax reductions is one of politics, not economics. As Thomas Sowell says, “The first lesson of economics is scarcity: There is never enough of anything to satisfy all those who want it. The first lesson of politics is to disregard the first lesson of economics.”

    Here’s hoping legislators make taxpayer-focused decisions based on sound economics when they return to Topeka this week.

    A version of this appeared in the Wichita Eagle.

    photo credit: 401(K) 2013 via photopin cc

  • Kansas must reform KPERS

    New research from Kansas Policy Institute reinforces what some have known but many have discounted: The Kansas Public Employee Retirement System is in poor financial shape, and it’s going to cost Kansans a lot to fix it. It is urgent that we enact substantive and meaningful reforms now, rather than later. KPI writes the following in introducing its new study Preventing Bankruptcy in the Kansas Public Employees Retirement System.

    Preventing Bankruptcy in the Kansas Public Employees Retirement System

    It turns out that the $9.2 billion hole found in Kansas’ public pension program will balloon under new accounting standards used by governments across the country.

    Under the current standards, Kansas’ pension system (KPERS) is funded at 59.2%, 80% is a generally accepted barometer of pension health. These numbers demonstrate that Kansas has one of the worst funded pension systems in the country.

    Unfortunately, the new standards will only make things worse as our funding ratio will drop to 46.1 percent under the new standards.

    Each person in Kansas will have to pay $3,285 to fill our KPERS hole under the old standards and things will only get worse.

    The executive summary of the study follows.

    Recent evidence reveals that the Kansas Public Employees Retirement System (KPERS) is one of the most underfunded pension plans in the country (59 percent funding ratio at the end of 2011) and that there is a high probability the plan will not have sufficient funds to meet pension obligations over the next decade. This funding ratio will deteriorate further under the new accounting standards discussed below. The solution to this funding crises is to bring pension benefits into line with the costs of pension plans for individual employees. A number of states have successfully enacted structural reforms in their state pension plans to accomplish this objective, including defined contribution and hybrid plans.

    Unfortunately the recent reforms enacted in KPERS creating a cash balance plan for new employees fails to accomplish that objective. This study provides a roadmap for pension reform in Kansas, the major conclusions of the study are:

    1. Use the New GASB Accounting Standard

    The new GASB standards to be implemented in 2013 and 2014 will require realistic actuarial assumptions and reporting. It is time for Kansas and other states too incorporate this more realistic data in transparent and timely reporting and to use this data in policy formulation.

    2. Enact Structural Reforms

    Using more realistic actuarial assumptions, via new GASB standards, most states, including Kansas, will find that they face a funding crises in their state and local pension plans. Kansas legislators must follow the lead of state and local governments that have successfully replaced these defined benefit pension plans with defined contribution or hybrid plans.

    3. Bring Public Sector Pension Benefits In Line with Private Pension Benefits

    Public sector workers receive wages and salaries equal to or greater than comparable employees in the private sector. The pension and other post employment benefits received by public sector workers are significantly above that received by private sector workers. The outcome of recent pension reforms is to bring convergence of pension benefits in the public and private sector.

    4. Legal Challenges to Public Sector Pension Reform

    Structural reforms enacted to solve the funding crises in state and local pension plans have been and will continue to be subject to legal challenges, and Kansas is well positioned to meet these legal challenges.

    5. Bankruptcy, Not Bailouts

    In Kansas there will be tremendous pressure to bailout failed state and local pension systems to avoid bankruptcy. Bailouts of pension plans create all the wrong incentives. If state and local governments cannot manage their pension plans and other financial affairs bankruptcy forces them to address these issues.

    6. Launch an Education Campaign

    Successful pension reform in other states such as Utah and Rhode Island has required a bi-partisan effort in the legislature and support from all the stakeholders. Generating this support for pension reform in Kansas will require an education campaign. Kansas citizens must understand that the current defined benefit pension plan is not sustainable. Solving the funding crisis in KPERS will require burden sharing by all the stakeholders, including current employees, retirees and new employees.

    The full study is at Preventing Bankruptcy in the Kansas Public Employees Retirement System.

  • Kansas editorial writers aren’t helping

    Recently it has become fashionable for newspapers to carry editorials bemoaning the current state of affairs in Kansas, contrasting the current regime to a tradition of moderation in Kansas governance. In particular, Governor Sam Brownback is singled out for criticism.

    Examples of such columns are Kansas 1861-2013 in the Hutchinson News, Kansas slipping away from its people in the Topeka Capital-Journal, and Which Kansas is that? in the Wichita Eagle.

    The common thread in these articles is willing ignorance of the facts. I say willing ignorance because these writers ought to know facts. If they don’t know facts about the Kansas economy and schools, we have to wonder why they are writing editorials that will be read by thousands of Kansans?

    Here’s a brief rundown of the state of Kansas:

    Kansas population has been growing at a slower rate than the country. A chart is here.

    Kansas has been growing jobs at a slower rate than many other states. Here’s a link to an interactive visualization of job growth in the states. You can compare Kansas to any other state or combination of states. Should we be satisfied with the performance of Kansas compared to other states over the past few decades? No, we shouldn’t be satisfied with our record during the period that these editorialists write about.

    Kansas has been growing its private-sector gross domestic product at a rate slower than most states. An interactive visualization is here.

    Kansas has lost ground in interstate migrants. Many more people leave Kansas for other states than move to Kansas, as can be seen here. In the 2012 United Van Lines migration study, Kansas is seen as “balanced.” But Atlas has more outbound shipments than inbound.

    While Kansas newspaper editorial writers like to boast of outstanding public schools, a proper examination of NAEP scores finds that Kansas can’t do better than Texas, a state that we often compare with ourselves in a negative way. Comparing Kansas to national averages, Kansas performs well compared to other states in math and reading in grades four and eight, scoring better than the national average in all these cases. But if we look at the data separated by racial/ethnic subgroups, something different becomes apparent: Kansas lags behind the national average in some of these areas. A table of these figures is here.

    Regarding Texas again: Editorial writers say that because Texas has no income tax, its property and sales taxes are higher. Perhaps. But overall, Texas collects less taxes from its citizens. In 2011 Kansas state government collected $2,378 in taxes for each person. Texas collected $1,682. Texas may have higher sales or property taxes than Kansas, but the total tax burden in Texas is lower.

    Spending follows the same pattern. In 2011 Kansas state government spent $5,115 per person in total, with $1,974 in general fund spending and $130 in bond spending. For Texas the total was $3,718 spent per person in total, with $1,654 in general fund spending and $50 in bond spending. The lower level of spending means Texas has a less burdensome state government, which allows more money to remain in the productive private sector. In Kansas, we spend more on government.

    The “sea of oil” and bountiful severance tax revenue that newspaper editorial writers say benefits Texas but not Kansas: In 2011 Kansas, which has a severance tax of its own, collected $42.54 in this form of tax for each person. Texas collected $104.29 per person in its severance tax. The difference between the two — $61.75 per person per year — is only a small portion of the difference between Kansas and Texas taxation.

    I could go on. But the more facts one states, the more criticism one receives.

    It’s not that what our governor is doing is perfect. It wasn’t the best course to single out certain forms of business organization to receive tax cuts. Everyone should have their taxes cut the same way.

    Governor Brownback still meddles in the economy, supporting harmful policies like the renewable portfolio standard for electricity generation. The Hutchinson News editorial wrote of how “Kansas proved to be a state teeming with inventiveness, ingenuity, determination and a savvy sense of business” and mentioned iconic Kansas-founded companies like Cessna, Beech, Stearman, Coleman, Pizza Hut, and White Castle. But today our state is strangling entrepreneurs, expanding control over economic development under the Brownback regime. Kansas has expanded the realm of public-private partnerships to the detriment of entrepreneurship. Cities like Wichita implement new regulations over industries like parking lot striping, taxicab driving, and haunted house attractions.

    Instead of moving to a modern pension system for state employees, we’re considering borrowing money to cover up the mistakes of the past, with no reform forthcoming and few lessons learned.

    Most inexplicably, Governor Brownback was absent in this year’s debate over important school reform measures like charter schools and school choice. These are initiatives that are working in other states, but not in Kansas.

    It isn’t supportive of our state (or county, city, or school district) to overlook facts in order to create a false impression of a prosperous state with successful schools. Yet that’s exactly what these newspaper editorials want us to do.

    If we don’t learn the facts and if we don’t accept the facts, we don’t have a common base of understanding and a common starting point for debate. Even if the facts are uncomfortable — especially then — we must recognize where we’ve been and what is the actual condition of our state.

    Hoping that Kansans won’t notice might be politically expedient. Both parties can be guilty of valuing political gain more than the health of Kansas. But it’s a severe loss to Kansas that these newspaper editorial writers will not recognize facts, and a shame that they prefer political attacks to reality.

  • Bonding KPERS debt is not the solution

    Burden of debt, money

    The Kansas House has passed, and now the Senate Ways and Means Committee will consider HB 2403, captioned “Issuing $1,500,000,000 of pension obligation bonds to finance a portion of the unfunded actuarial liability of KPERS.”

    Borrowing money to shore up the Kansas state employee pension plan is about the worst idea that could come out of Topeka. Legislatures across the country, and counties and cities of all sizes, have shown that government is fundamentally unable to manage the responsibilities of a defined benefit pension plan.

    For more about the problems with KPERS, see KPERS problems must be confronted. Newspapers are not helping Kansans grasp the gravity of the problem; see KPERS editorial a disservice to Kansans. Below is a helpful explanation written by Kansas Policy Institute Adjunct Fiscal Policy Fellow Barry Poulson, Ph.D.. He is also Emeritus Professor at the University of Colorado — Boulder.

    Public officials in Kansas have proposed using pension obligation bonds to solve the funding crisis in the Kansas Public Employee Pension System (KPERS). In my view this is not a solution to the funding problem and I will discuss what I perceive to be flaws in this proposal.

    The rationale for using pension obligation bonds to pay off unfunded liabilities in the pension plan assumes that the state can borrow funds at a low interest rate and then earn a higher rate of return on the proceeds deposited with the pension fund. The flaw in this rationale is the assumption that KPERS will earn a higher rate of return on bond proceeds deposited in the KPERS fund. KPERS assumes an 8 percent return on assets accumulated in the fund. For a number of years, economists and actuaries have questioned this assumed rate of return and the use of this assumed rate to discount liabilities in the plan. The Government Accounting Standards Board has issued new standards, 67 and 68, to be implemented over the next two years, requiring state and local governments to use a lower interest rate, the mortgage bond rate, to discount liabilities in their financial statements.

    If we assume that a lower rate of interest, such as the municipal bond rate, is the interest rate relevant in discounting unfunded liabilities in the pension plan then it is not clear that issuing pension obligation bonds will generate returns above the interest cost on those bonds. If the returns fall below the interest cost on the bonds then this introduces an additional risk and could in fact exacerbate the funding problem in KPERS.

    A major flaw in the proposed issuance of pension obligation bonds is the lack of nexus between the investment of the bond proceeds and payments for unfunded liabilities in the plan. The experience in other states is that sometimes bond proceeds are earmarked for other state expenditures. The most egregious example of this problem is the state of Illinois which issued $10 billion in pension obligation bonds and then used the proceeds to meet current expenditures rather than to pay off unfunded liabilities in the pension plan.

    Even if the state of Kansas would not commit this form of fraud on the taxpayers the fungible nature of state funding makes it impossible to guarantee the nexus between bond proceeds and the payment for unfunded liabilities in the pension plan. If legislators see that additional funds are available to pay off unfunded liabilities in the pension plan they may choose to allocate less general fund money to meet these pension obligations. The state has not allocated the annual required contribution (ARC) to KPERS for several decades and is not projected to do so for the foreseeable future. Legislators continue to promise pension benefits without allocating the funds required to meet these obligations. We should expect this moral hazard to be even greater with the issuance of pension obligation bonds.

    Even if the proceeds of pension obligation bonds could be set aside in a lock box and earmarked to pay off unfunded liabilities in the pension plan the state must still address the accumulation of unfunded liabilities in the defined benefit plan. Without fundamental structural change, including shifting public employees to some form of defined contribution pension plan, these unfunded liabilities will continue to accumulate. Legislators should not be diverted from this difficult task by non-reforms, such as the issuance of pension obligation bonds.

    Shifting the cost of pension obligations from one generation of employees and taxpayers to the next generation is not a solution to the funding crisis in KPERS. The defined benefit plan offered by KPERS is not sustainable.

    I analyze the sources of unfunded liabilities in the plan and explore alternative reforms to solve this problem in an upcoming paper with KPI.

    Some of my other work for KPI on KPERS is here and a legal analysis of what can, and cannot, be changed in KPERS is here; the latter piece was done by another scholar.

  • Personal income growth in the states

    As Kansas debates whether to move forward with a new vision, especially in tax policy, we should examine how we have fared under the policies of recent decades.

    The visualization below starts in 1994, the year Bill Graves was elected governor. That started a 16 year period of governance by moderate Republicans and Democrats, a period now promoted as a golden area of common sense government that has led to prosperity in Kansas.

    But in the visualization below, where does Kansas rank in relation to some of our surrounding states? The answer is: Not well.

    To see how your state compares with others in personal income growth, use the interactive visualization below. Click the check boxes to add or remove states. Use the slider to adjust the range of years. Click on state names in the legend below the chart to highlight one or more states’ data (Ctrl+click highlights more than one state.)

    You may use the visualization below, or click here to open it in a new window, which may work better for some people. Data is from U.S. Bureau of Economic Analysis (BEA); visualization created by myself using Tableau Public.

  • Progress in Kansas

    Progressives throughout Kansas are up in arms over the prospect that our state might someday have no income tax. They point to moderate, common sense Kansas governance that they claim has built Kansas into a great state.

    Here’s one writer:

    Who will stand up to this Governor and say that there is a self inflicted and avoidable form of cancer being foisted upon the body politic of Kansas. … This cancer is self defeating, self sustaining, and metastasizing rapidly. Who will try to stop it? Who will find the cure? Who among us will find the courage to stand up to the bully and stop feeding the beast?

    Funny. I thought government was the beast that we taxpayers have been feeding. When taxing and spending is reduced, and when people are allowed to keep more of what is rightfully theirs — that’s a reduction reduction in bullying, and puts government on a diet.

    In the Winfield Daily Courier, Dave Seaton wrote “Neither the Senate nor the courts are any longer a bulwark against extremism in Topeka. The Senate has become a palace guard for the governor, and the courts are fighting for their independence. We, the people in the middle — moderate Republicans, moderate Democrats and unaffiliated voters — are the only force that remains to turn our state back to a common sense direction.”

    We might ask Mr. Seaton what is the record of moderate and common sense Kansas government? Perhaps the most important issue for most Kansans is jobs. In this regard, Kansas — under leadership of moderates and “common sense” governors — has performed poorly. A chart of the number of private sector jobs in Kansas as compared to a few surrounding states over the past eleven years shows Kansas at or near the bottom. (Kansas is the thick black line. Data is indexed so that all states start at the same relative position.)

    Kansas private sector job growth compared to other statesKansas private sector job growth compared to other states. Data is indexed, with January 2001 equal to 1. Source: Bureau of Labor Statistics

    Incredibly, not long ago Kansas was reported to be the only state to have a loss in private sector jobs over a year-long period. (Revisions since then have shown a small gain in jobs.) This is the culmination of governance by the coalition of moderate, traditional Kansas Republicans and Democrats.

    Here’s a link to an interactive visualization of job growth in the states. You can compare Kansas to any other state or combination of states. Can we be satisfied with the performance of Kansas?

    Further evidence of the harm of moderate Republican/Democratic “common sense” governance was revealed last year when the Tax Foundation released a report examining tax costs on business in the states and in selected cities in each state. The news for Kansas is worse than merely bad, as our state couldn’t have performed much worse: Kansas ranks 47th among the states for tax costs for mature business firms, and 48th for new firms. See Kansas reasonable: We’re number 47 (and 48).

    Then, there’s our schools. Here’s what House Democratic Leader Paul Davis wrote on his Facebook page: “The state should not be investing $10 million taxpayer dollars into private schools (which basically means public money with no strings attached) while leaving our local public schools severely underfunded.”

    I’d like to ask Rep. Davis if he’s really proud of the results of Kansas schools — or if he is aware of the statistics. Many in Kansas say that our schools are much better than Texas schools, and that we don’t want our schools to fall to the level of Texas schools. If we look at National Assessment of Educational Progress (NAEP) test scores, we see that when reporting scores for all students, Kansas has higher scores than Texas, except for one tie.

    But when we look at subgroups, all the sudden the picture is different: Texas has the best scores in all cases, except for two ties. Similar patterns exist for previous years. See Kansas school test scores, in perspective for tables.

    kansas-texas-naep-test-scores-2011

    Kansas students, in the aggregate, score better than Texas students, that is true. It is also true that Texas white students score better than Kansas white students, Texas black students score better than Kansas black students, and Texas Hispanic students score better than or tie Kansas Hispanic students. The same pattern holds true for other ethnic subgroups.

    Comparing Kansas to the nation: Kansas does better than the national average in all cases. But if we look at the data separated by racial/ethnic subgroups, something different becomes apparent: Kansas lags behind the national average in some of these areas. See Kansas school supporters should look more closely for tables.

    By the way, Texas spends less on schools than does Kansas. In 2009, Kansas spent $11,427 per student. Texas spent $11,085, according to the National Center for Education Statistics. Considering only spending categorized by NCES to be for instruction purposes, it was Kansas at $6,162 per student and Texas at $5,138.

    Texas also has larger class sizes, or more precisely, a higher pupil/teacher ratio. Texas has 14.56 students for each teacher. In Kansas, it’s 13.67. (2009 figures, according to NCES.)

    Do these facts matter to Kansas progressives who want to maintain high levels of taxation and government spending? We first must ask if they are even aware of the facts. Sadly, I suspect they don’t want to know.

  • Kansas school choice defeated

    The Kansas House of Representatives has failed, both in committee and on the floor, to pass legislation enabling tax credit scholarships for low-income and special needs students. This marks a low point in the legislative session, and it appears that Kansas schoolchildren will need to wait another year to have the same freedom and opportunity that children in many states enjoy.

    Listening to the debate was an experience in frustration at the arguments of defenders of the status quo and the inability of reformers to counter. An example is Representative Jim Ward of Wichita. In his remarks, Ward started by saying he had to “categorically reject” the arguments that schools are not meeting the needs of students, and that we are not educating world-class students. He mentioned several examples, adding that our public schools are doing an excellent job.

    [powerpress url=”http://wichitaliberty.org/wp-content/uploads/2013/03/jim-ward-kansas-house-2013-03-25.mp3″]

    Rep. Ward’s anecdotal evidence aside, the broader picture of Kansas schools is not as glowing. Many in Kansas say that our schools are much better than Texas schools. They cite National Assessment of Educational Progress (NAEP) test scores. When reporting scores for all students, Kansas has the highest scores, except for one tie. But when we look at subgroups, all the sudden the picture is different: Texas has the best scores in all cases, except for two ties. Similar patterns exist for previous years. See Kansas school test scores, in perspective for tables.

    kansas-texas-naep-test-scores-2011

    Kansas students, considering the entire state, score better than Texas students, that is true. It is also true that Texas white students score better than Kansas white students, Texas black students score better than Kansas black students, and Texas Hispanic students score better than or tie Kansas Hispanic students. The same pattern holds true for other ethnic subgroups.

    Comparing Kansas to the nation: Kansas does better than the national average in all cases. But if we look at the data separated by racial/ethnic subgroups, something different becomes apparent: Kansas lags behind the national average in some of these areas. See Kansas school supporters should look more closely for tables.

    Ward then claimed that Kansas schools are “operating on a per-pupil funding from 1992.” I don’t have figures going back that far, but as can be seen in the following chart, school spending has been rising over the long haul, even when allowing for inflation.

    Kansas school spending per student, adjusted for CPI

    While Rep. Ward spun a tale of a handful of very expensive special education students, he — like other public school spending advocates — wants you to ignore the entirety of school spending and just focus on a small part of that spending.

    Ward then turned to the purported lack of accountability and oversight of the schools that might receive tax credit scholarship money. He praised how the state holds Kansas public schools accountable.

    The reality, however, is different. First, Kansas has low standards, compared to other states.

    Further, Kansas standards have declined over the years. Last year Kansas Commissioner of Education Diane DeBacker wrote that she is proud of student achievement in Kansas: “Since 2001, the percentage of students statewide who perform in the top three levels on state reading assessments has jumped from about 60 percent to more than 87 percent. In math, the jump has been from just more than 54 percent to nearly 85 percent.”

    This rise in performance, however, is only on tests that the Kansas education establishment controls. On every measure of student performance that is independent, this rising trend in student achievement does not appear. In some measures, for some recent years, the performance of Kansas students has declined.

    How can it be that one series of tests scores are rising, but not others? Kansas school administrators don’t have a good answer for this. But there is a good reason: The Kansas test scores are subject to manipulation for political reasons.

    In 2006 Kansas implemented new tests, and the state specifically warns that comparisons with previous years — like 2001 — are not valid. A KSDE document titled Kansas Assessments in Reading and Mathematics 2006 Technical Manual states so explicitly: “As the baseline year of the new round of assessments, the Spring 2006 administration incorporated important changes from prior KAMM assessments administered in the 2000 — 2005 testing cycle. Curriculum standards and targets for the assessments were changed, test specifications revised, and assessed grade levels expanded to include students in grades 3-8 and one grade level in high school. In effect, no comparison to past student, building, district, or state performance should be made.” (emphasis added.)

    Despite this warning, DeBacker and Kansas school superintendents make an invalid statistical comparison. This is not an innocent mistake.

    On other tests, only 28 percent of Kansas students are ready for college-level work in all four subjects the ACT test covers. While this result was slightly better than the national average, it means that nearly three-fourths of Kansas high school graduates need to take one or more remedial college courses.

    Is this the accountability that Kansans like Rep. Ward are promoting? Compared to the accountability that parents can exercise when they have a credible threat of sending their child to a different school?

    Kansas now faces the danger of falling behind other states in school reform measures such as charter schools, schools choice, teacher tenure reform, and collective bargaining reform. Somehow, other states are able to implement reforms that we in Kansas will not.

  • Kansas Open Records Act needs improvement

    File folder and documents

    Testimony to Senate Standing Committee on Federal and State Affairs as proponent of SB 10: Open meetings; minutes required; open records; charges limited, by Bob Weeks, March 13, 2013.

    Chairman Ostmeyer and members of the Committee:

    Thank you for this opportunity to present testimony on problems with the Kansas Open Records Act regarding high fees for the production of records. In 2008 I personally encountered this problem, as reported in the Wichita Eagle:

    Open Records Requests Can Spell High Fees (Wichita Eagle, March 9, 2008)

    Want information from the governor’s office? Get ready to pay up. That’s what Wichita blogger Bob Weeks says he discovered when he requested four days’ worth of e-mails sent and received by Gov. Kathleen Sebelius and her staff.

    To get the records, he was told he’d have to pay a lawyer in the governor’s office $27 an hour, for 50 hours, to read the e-mails to make sure they aren’t exempt from disclosure. That and 25 cents a page for copies or an unspecified extra charge to get the e-mails in electronic form. “Please make your check for the amount of $1,350 payable to the state of Kansas and reference your open records request,” said a letter Weeks received from JaLynn Copp, assistant general counsel to the governor.

    State Sen. Timothy Huelskamp, R-Fowler, said he was aware of Weeks’ case. He said he thinks the fees are excessive. “It doesn’t mean much for it to be an open record if you can’t afford it,” he said. In addition, he said a sluggish response to the request from the governor’s office appears to have violated the state Open Records Act. Huelskamp said the law requires state agencies to fulfill records requests within three business days or provide a detailed reason why that can’t be done. Weeks mailed his request on Feb. 7 and got an initial response Feb. 13. His cost estimate didn’t come until Feb. 26, and neither letter explained the delay, Huelskamp said. “It’s really in violation of the letter and the spirit of the law and I’ve seen that happen more than once,” he said. (Full article available online at bit.ly/openrecordsks001)

    Based on this and other experience, it is difficult to obtain email records at reasonable cost. If one makes a very narrowly-defined request that is affordable, there is a chance that the request will not produce the desired documents. If the request is broad enough to catch the records one needs, it is likely to be very expensive.

    Kansas could use as a model the federal Freedom of Information Act (5 USC § 552), which provides for a limit on fees in certain cases: “Fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media.” (emphasis added)

    There are other problems with the Kansas Open Records Act. Enforcement is weak. In my case, the Sedgwick County District Attorney took 14 months to produce a ruling that I believe is contrary to the intent of this Legislature. As the Kansas attorney General refers all cases to the local District Attorney, I have no other avenue for enforcement except for a private lawsuit at my expense.

    Cities and other local governmental bodies have set up non-profit organizations to conduct business such as economic development. These agencies, as in the case of the Wichita Downtown Development Corporation, may receive up to 98 percent of their revenue from taxation, have only government as clients, and perform functions that are governmental in nature, yet they are judged not to be a public agency for purposes of the Kansas Open Records Act. This flies in the face of the Legislature’s declared intent in the preamble of the Act: “It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.”

    While the Kansas Open Records Act requires agencies to respond to the request within three business days, a response might be “This will take more time.” At that point, as far as I know, there is nothing to prevent an agency from stalling indefinitely in fulfilling the records request.

    In some jurisdictions, if three or more records requests are received on the same topic, the agency must post the records. Kansas should go a step farther and require that governmental agencies post online all documents and records produced in response to records requests. In this way, the work done to fulfill requests could be leveraged and appreciated by a broader audience. An example of an agency doing this is Community Unit School District 300 in Illinois, at www.d300.org.

    Elected officials and bureaucrats often are either misinformed regarding the Open Records Act, or have a poor attitude towards open government. This Wichita school district, for example, has told me that my records requests are a “burden” that interferes with the education of children. A Wichita city council member argued that if the city manager was satisfied with the level of service that an agency provided, there was no need for the agency to produce records.

    The council member then extended that argument, wondering if any company the city contracts with that is providing satisfactory products or service would be subject to “government intrusion” through records requests. He must not have been aware that the Kansas Open Records Act contains a large exception, which excepts: “Any entity solely by reason of payment from public funds for property, goods or services of such entity.” So companies that sell to government in the ordinary course of business are not subject to the open records law.

    In 2007 the Better Government Association and National Freedom of Information Coalition gave Kansas a letter grade of “F” for its open records law. In 2011 State Integrity Investigation looked at the states, and Kansas did not rank well there, either.

    There is much that Kansas can, and should do, to strengthen its Open Records Law to give citizens and journalists better access to records and documents. Reigning in the ability of agencies to erect a protective wall of high fees is a first step.

    I have additional information about the Kansas Open Records Act and its problems at wichitaliberty.org/open-records.

    Respectfully submitted,
    Bob Weeks

  • Kansas spring elections should be moved

    Ballot boxFollowing is testimony I will deliver to the Senate Standing Committee on Ethics, Elections and Local Government as a proponent of SB 211: Elections; municipalities; primary and general elections; date change; partisan.

    Thank you for allowing me to present testimony in favor of SB 211, which would move city and school board elections from the spring of odd-numbered years to the fall of even-numbered years to coincide with state and national elections.

    I’ve gathered statistics for elections in Sedgwick County, and these numbers show that voter turnout in spring elections is much lower than in fall elections. (For these statistics I count the August primary as part of the fall election cycle.) Since 2000, turnout for fall elections, both primary and general, has been 44 percent. Over the same period, spring elections turnout has been 18 percent.

    Remarkably, a special Wichita citywide election in February 2012 with just one question on the ballot had voter turnout of 13.7 percent. One year earlier, in April 2011, the spring general election had four of six city council districts contested and a citywide mayoral election. Turnout was 12.8 percent, less than for a single-question election.

    The problem of low voter participation in off-cycle elections is not limited to Sedgwick County or Kansas. In her paper “Election Timing and the Electoral Influence of Interest Groups,” Sarah F. Anzia writes “A well developed literature has shown that the timing of elections matters a great deal for voter turnout. … When cities and school districts hold elections at times other than state and national elections, voter turnout is far lower than when those elections are held at the same time as presidential or gubernatorial elections.”

    In the same paper, Anzia explains that when voter participation is low, it opens the door for special interest groups to dominate the election: “When an election is separated from other elections that attract higher turnout, many eligible voters abstain, but interest group members that have a large stake in the election outcome turn out at high rates regardless of the increase in the cost of voting. Moreover, interest groups’ efforts to strategically mobilize supportive voters have a greater impact on election outcomes when overall turnout is low. Consequently, the electoral influence of interest groups is greater in off-cycle elections than in on-cycle elections. As a result, the policy made by officials elected in off-cycle elections should be more favorable to dominant interest groups than policy made by officials elected in on-cycle elections.” (Election Timing and the Electoral Influence of Interest Groups, Sarah F. Anzia, Stanford University, Journal of Politics, April 2011, Vol. 73 Issue 2, p 412-427, version online here.)

    I urge this committee to support moving the spring elections to be held in conjunction with the fall state and national elections. This will help reduce the electoral power and influence of special interest groups.

    SB 211 Testimony by Bob Weeks March 13, 2013 by Bob Weeks