Voice For Liberty

Tag: Kansas legislature

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

  • Kansas judicial selection: The need for reform

    Kansas University School of Law Professor Stephen J. Ware appeared on the KAKE Television public affairs program This Week in Kansas to discuss the method of judicial selection in Kansas. Phil Journey and Chapman Rackaway appear as panelists. Tim Brown is the host.

    In today’s debate the issue of judicial selection reform is usually characterized as strictly political. Now that Kansas has a conservative governor and a conservative legislature, it is said that conservatives want to remake the courts to suit their ideology.

    That may be the motivation for many. But Professor Ware has advocated for reform for a long time, favoring a system of appointment by the governor with confirmation by the senate. Ware’s 2007 research paper on this matter, published by the Federalist Society, may be read at Selection to the Kansas Supreme Court. The opening sentence of this report starkly states the singular character of the process in Kansas: “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”

    At the time Ware wrote this paper and convinced me of the need for reform, Democrat Kathleen Sebelius had just been re-elected Kansas Governor. The senate — which would confirm the governor’s appointments — was firmly in the control of political liberals and moderates who would be sure to rubberstamp her pick. Rubberstamp — that’s a word we see used today by progressives to describe the machinery of Kansas politics at the state level.

    Another paper by Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge.

  • Kansas and Texas schools, according to Kansas Democrats

    As Kansas Republicans look to Texas as a role model for Kansas to follow, defenders of high levels of school spending in Kansas characterize Texas schools as inferior to Kansas schools.

    A recent tweet from the Kansas Democratic Party read “Fun Texas Fact #6 for @govsambrownback: 28% of TX 4th graders read proficiently, 39th nationally. KS = 36%, 12th. #ksleg #KansasIsNotTexas”

    Superficially, it looks like the Kansas Democrats might be right. Scores on the National Assessment of Education Progress, a test that is the same in all states, has Kansas scoring better than Texas (with one tie) in reading and math, in both fourth and eighth grade.

    Considering only fourth grade reading, and looking at the percent reading at the “proficient” level or better, the statistics cited by the Kansas Democrats are absolutely correct.

    That makes sense to the Democrats and to the school spending establishment, as Kansas, in 2009, spent $11,427 per student. Texas spent $11,085, according to the National Center for Education Statistics. Considering only spending deemed by NCES to be for instruction, 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.)

    So for those who believe that spending a lot on schools is necessary for student success, Kansas and Texas NAEP scores are evidence that they’re correct in their belief.

    But let us take another look at the Kansas and Texas NAEP scores. Here’s a table of 2011 scores for fourth grade reading, the subject and grade level the Democrats used. (Click on the table to open it in a window by itself.)

    Kansas and Texas reading scores

    Notice that when reporting scores for all students, Kansas does better than Texas. Kansas has the highest scale score, and higher percentages of students meeting each level of achievement. (The cell with the best value is shaded.)

    But when we look at subgroups, all the sudden the picture is different: Texas almost always bests or ties Kansas.

    Kansas students have better reading scores than Texas students, that is true. It is also true that Texas white students have better reading scores than Kansas white students, Texas black students score better than or equal to Kansas black students, and Texas Hispanic students score almost exactly the same as Kansas Hispanic students.

    How can this be? How can it be that when considering all students, Kansas does better than Texas, but when looking at ethnic subgroups, the situation is mostly reversed?

    The answer is Simpson’s Paradox. A Wikipedia article explains: “A paradox in which a trend that appears in different groups of data disappears when these groups are combined, and the reverse trend appears for the aggregate data.”

    In this case, the confounding factor (“lurking” variable) is that the two states differ greatly in the proportion of white students. In Kansas, 68 percent of students are white. In Texas it’s 31 percent. This large difference in the composition of students is what makes it look like Kansas students perform better on the NAEP than Texas students.

    But looking at the scores for ethnic subgroups, which state would you say has the most desirable set of NAEP scores?

  • Who is Richard Windsor?

    Kyle Smith in the New York Post:

    Richard Windsor was the nom de plume of EPA chief Lisa Jackson, who announced her resignation last month. Why, you may ask, would a federal bureaucrat need an alias? Did she need cover in order to work on her own version of “50 Shades of Grey”? Does a secret identity liberate her to fight General Zod and Lex Luthor?

    Or is she, like most users of aliases, trying to hide from the law?

    The latter seems closest to the truth. Jackson has not been charged with any wrongdoing, but she has apparently been using unofficial e-mail accounts to discuss government affairs. As a side benefit, such exchanges might have been expected to escape discovery via the Freedom of Information Act. It is against federal law to use private e-mail addresses to discuss the people’s business.

    Using secret anonymous email accounts to conduct government business is a serious matter. As Kansas seeks to beef up its open records law, we ought to include language to cover this type of abuse.

    The Competitive Enterprise Institute is at the forefront of this breaking issue. Their hub of information is at The EPA’s “Richard Windsor” Email Scandal.

  • Kansas Policy Institute on Kansas 2014 budget

    Kansas Policy Institute president Dave Trabert offered the following statement today regarding the release of fiscal year 2014 — 2015 budget proposal by Governor Sam Brownback:

    On taxes: “HB 2117 was a great step in the right direction on taxes and we should absolutely continue to lower taxes on all Kansans. We applaud Governor Brownback’s efforts to eliminate income taxes in Kansas, but increasing sales taxes in July is not the way to do it. Completely eliminating the income may require a sales tax increase, but the rate cannot be determined until government stops giving away taxpayer money in the name of economic development and gets spending under control.”

    On spending: “We can’t know how much government should spend until we actually look for ways to be more efficient. Spending less is not about cutting service, it’s about providing the same or better service at a better price. The Governor’s budget does so in some places but it should go further. 31 states are estimated to have spent less per-resident than Kansas in 2012 so we can certainly find ways to be more efficient — especially given that general fund spending has increased 32% since 2005.”

    “We often hear laughter when we ask people around the state if government operates efficiently and a recent public opinion poll we conducted with SurveyUSA backs this up. In fact, 83 percent of Kansans believe the state government could operate five to 10 percent more efficiently.”

    On K-12 Finance and Gannon implications: “The $654 increase in Base State Aid Per-Pupil called for in the Gannon court ruling, would bring total taxpayer aid to schools to $14,045 per-pupil this year. It costs a lot of money to operate our schools, but it’s how the money is spent that matters, not how much. No study has ever been conducted in Kansas to determine what it costs for students to achieve required outcomes and have schools organized and operating in a cost-effective manner. Legislators have an obligation to fund schools, but they also have an obligation to do so in a way that makes effective use of taxpayer money.”

    “The education focus should be on outcomes. Billions in increased aid to schools over the years have not improved student achievement on independent national exams. Even state assessments show that only 56 percent of 11th grade students read grade-appropriate material with full comprehension. More money isn’t the answer to raising student achievement. It’s time to start looking for real solutions..”

    On KPERS: “Gov. Brownback clearly recognizes that last year’s KPERS reform didn’t go as far as it needs to. So even though it isn’t formally in the budget a move to a 401(k) style plan for new hires and non-vested current employees stops the likely $15 billion KPERS hole from getting deeper and, if properly structured, starts filling it back in.

  • Reaction to Kansas State of the State Address, 2013

    Governor Sam Brownback delivered his State of the State Address on January 15, 2013. The as-prepared text of the address may be read here.

    Americans for Prosperity-Kansas:

    “Americans for Prosperity-Kansas continues to support the eventual elimination of the income tax in Kansas, and we applaud Gov. Brownback for making this a priority in 2013″” said AFP-Kansas state director Derrick Sontag. “We would support a trigger mechanism for future rate reductions in the proposal rather than legislators continuing to seek a reduction in the rate every year.

    “We have no doubt that continued reductions in the income tax rate will help create economic activity, expand the tax base and create jobs.

    “We’re coming off a years-long cycle in which excessive government spending stifled Kansas families and resulted in stagnant population growth, taxpayers migrating to other states, and the loss of tens of thousands of private sector jobs. The Governor said it best when he pointed out that some choose to grow spending rather than jobs.

    “We look forward to working with legislators and the Governor in the coming session on other important areas of reform such as judicial selection — giving citizens of Kansas more direct input in the judges who sit on the Kansas Supreme Court and Kansas Court of Appeals. Senate confirmation or elections of judges would certainly create a more transparent process that is accountable to the people.”

    Senate Democratic Leader Anthony Hensley and House Democratic Leader Paul Davis issued the following statement. Hensley is wrong about the school spending figures, as I report in Kansas Democrats wrong on school spending.

    “Governor Brownback’s $2.5 billion dollar self-inflicted budget shortfall, a result of his irresponsible tax policy, has brought Kansas to the edge of its own fiscal cliff. He has brought Washington, D.C. politics to Kansas, and they do not belong here,” said Hensley. “Four months into office, he signed the single largest cut to public education in Kansas history. In just three school years, statewide funding for K-12 education was cut nearly $442 million, or a cut of $620 per child. It is no surprise that a three-judge panel issued its ruling last Friday that the Legislature isn’t meeting its K-12 school funding duty under the Kansas Constitution. Members of the Legislature took an oath just yesterday swearing to uphold the Constitution of Kansas. What is our oath worth if we renege on our constitutional duty to adequately and fairly fund our schools?”

    The 2013 legislative session will likely be marked by three major issues: a budget deficit created by tax breaks for the wealthy and big corporations, a court order to restore funding to Kansas public schools and a fundamental debate over checks and balances in Kansas.

    “Democrats want to be part of the solution to this problem, but we cannot support proposals that make the gap between the rich and the middle class even wider. The most troubling part of the Brownback Agenda is the extent to which it brings Washington-style politics to Kansas. We need Kansas based solutions to our Kansas problems, which means funding for Kansas schools, lower property taxes, and proposals to create good paying jobs for middle class families,” said Davis.

    Some tweets:

    Someone doesn’t understand the difference between “deductible” and “refundable”:

  • Reaction to Kansas school lawsuit decision

    Following are several reactions to the decision in Gannon vs. Kansas, the school funding lawsuit. The court ruled the state must spend more on schools.

    An important observation on the true size of the court-ordered tax increase was offered by Kansas Policy Institute:

    “Today’s mandate of a $654 Base State Aid Per-Pupil (BSAPP) increase forces the state to raise annual spending and taxes by $440 million and, because of the way the Local Option Budget is written, local property taxes will automatically increase by $154 million. In total, the Shawnee District Court would take an additional $594 million out of the Kansas economy every year.”

    See KPI on Gannon: Extremely Unfortunate $600 Million Annual Tax Hike more, including:

    “It is extremely unfortunate for citizens of Kansas that the court has effectively ordered an annual $594 million tax hike. This is even more shocking given that there is no evidence that the billions in increased spending have raised student achievement on independent national exams. According to the National Assessment of Educational Progress (NAEP), less than half of Kansas’ 4th and 8th grade students are proficient in math and only about one third are proficient in reading – this is essentially unchanged over the past decade despite billions in increased taxpayer support.

    “It costs a lot of money to operate our schools, but its how the money is spent that matters, not simply how much. Just this week, Education Week gave Kansas a D+ for student achievement; among other things, this was a result of low rankings for achievement gains and that we are below the national average for gains in each subject and grade level. They also pointed out that per-pupil spending in Kansas is above the national average and that State expenditures on K-12 schooling, as a percent of state taxable resources, are the 12th highest in the nation.

    Kansas Governor Sam Brownback issued this statement:

    “The ruling by the district court is disappointing but not unexpected given the Kansas Supreme Court’s previous ruling in the Montoy case in 2005. Through today’s ruling, the courts are drastically increasing the property tax burden on every Kansan. The Kansas Legislature, not the courts, has the power of the purse and has, in fact, increased total state funding for schools every year during my administration. The legislative process is the appropriate venue for debating and resolving issues of taxation and spending.”

    From Senate President Susan Wagle:

    “Once again, Kansas judges have overstepped their constitutional bounds and defied the will of Kansas voters and their elected representatives and senators. With today’s decision, this judicial panel ignored the system of checks and balances that every Kansas student is taught in school and decided that they alone, not the people via the legislature, would determine how the people’s money should be spent, by imposing a specific dollar amount that Kansas must spend for education.

    “These judges have made themselves the sole arbiters of spending — and by extension, taxation — in Kansas. They have demonstrated no regard for the ability of struggling Kansas families to pay higher taxes, if necessary, to meet their demands. This also disregards the will of Kansas voters, who overwhelmingly elected a House and Senate that supports the existing school funding policy — one that maintains educational quality while also being sensitive to the very real difficulties being faced by Kansas taxpayers.

    “I am committed to upholding the will of the majority of Kansans who want their elected leaders to maintain high-quality public education. I am committed to restoring to Kansas the fundamental American principle that only the elected representatives of the people of Kansas — accountable to them at the ballot box — may enact laws regarding spending and taxation.”

    In a press release titled “District Court decision supports a quality education” Kansas National Education Association (KNEA), our state’s teachers union said:

    Once again a Kansas Court has found that the Legislature has failed to fully fund an appropriate public education for Kansas students. …

    As to the issue of property taxes, this decision has no effect on property taxes whatsoever. Whether or not property taxes increase will be a matter of how the Legislature decides to react. Since the Legislature last year chose to enact massive cuts to the state income tax, they will need to look to some tax source to overcome first the shortfall of nearly $300 million created by the tax cut and then the projected $440 million necessary to fund the school finance formula. If property taxes go up, the decision will rest entirely with the Legislature. There are many options available to them; they have so far chosen to use scare tactics in reaction to being held accountable.

    There is no greater economic development tool than a well-trained, well-educated citizenry. Kansas has long delivered on that promise. This ruling reasserts the State’s commitment to the children, families, and businesses of Kansas.

    USD 259, the Wichita public school district:

    The District Court of Kansas issued its opinion on the school finance lawsuit on January 11. The ruling, which is in excess of 250 pages, requires adequate funding for schools. The court ordered that the base state aid per pupil should be funded at $4,492, up from $3,838. If funded, the base increase would restore most of the cuts the district has made since 2009. The increase could be at least $45 million. To read the ruling, click here. To watch BOE President Lynn Rogers’ news conference about the opinion, click here.

    “This is a win for Kansas students,” said BOE President Lynn Rogers. “The lawsuit is about our children and the Kansas of tomorrow, so we can prepare Wichita students for the high-wage, high skill jobs of the future.”

    BOE President Rogers said that the lawsuit was about adequate funding for all Kansas students and that they deserve a quality education regardless of where they live in the state. He also said it is about creating a highly-skilled workforce for the future, which starts with students receiving a quality education.”

    “The education we provide is the foundation for our workforce and the future of Kansas. If we don’t give our students a quality education now, we will pay for it in the future,” he added.

    The school districts involved in the lawsuit represent about one-third of the students across the state.

    President Lynn Rogers said that school districts must collaborate with the Kansas State Legislature to work towards school funding solutions.

  • Kansas budget solution overlooked

    As Kansas prepares for a legislative session that must find ways to balance a budget in the face of declining revenues, not all solutions are being considered.

    Generally, the choices are presented as either raising revenues or cutting services. An example comes from H. Edward Flentje of Wichita State University. In a recent op-ed, he presents two solutions: (a) raising more revenue, by canceling the recently-passed tax cuts and retaining the current sales tax rate hike instead of letting it expire, or (b) cutting services. (H. Edward Flentje : State facing fiscal cliff, December 16, 2012 Wichita Eagle)

    In the Kansas City Star, Steve Rose made a similar argument.

    I hope that “cutting services” means cutting spending on services, not the actual level of services the state provides, although that could probably use some trimming, too.

    How much spending does the state need to cut? Kansas Policy Institute has calculated that a one-time spending cut of 8.5 percent, followed by spending growth of four percent per year, would produce a balanced budget with ending balances.

    Does anyone think this goal can’t be met? If not, then perhaps cutting four percent in each of the next two years could be a goal.

    But either way, we can cut spending while maintaining services people have become accustomed to expect from government. Remaking government is a way to do this. We can make government more efficient, despite the claims that it is impossible to do so.

    As an example, in 2010 the Wichita school district saved $2.5 million per year by adjusting school starting times, thereby saving on transportation costs. This was after district officials claimed — repeatedly — there was nothing they could cut. Spending had already been “cut to the bone,” officials said.

    When we see incidents like this, the governing body trumpets the savings, and then, unfortunately, often stops looking for savings. But we need to keep looking. An example of a way to save money is school choice.

    School choice saves states money

    While proponents of public school spending argue that school choice programs drain away dollars from what they claim are underfunded public schools, this is not the case.

    In 2007 The Friedman Foundation for Educational Choice released the study School Choice by the Numbers: The Fiscal Effect of School Choice Programs, 1990-2006. According to the executive summary: “Every existing school choice program is at least fiscally neutral, and most produce a substantial savings.”

    How can this be? The public school spending lobby, which in Kansas is primarily the Kansas National Education Association (KNEA, the teachers union) and the Kansas Association of School Boards (KASB), would have us believe that educational freedom would kill public education. They say that school choice program drain scarce resources from the public school system.

    But when researchers looked at the actual effects, they found this: “In nearly every school choice program, the dollar value of the voucher or scholarship is less than or equal to the state’s formula spending per student. This means states are spending the same amount or less on students in school choice programs than they would have spent on the same students if they had attended public schools, producing a fiscal savings.”

    So at the state level, school choice programs save money. They don’t cost money to implement; they save money.

    Further research on school choice programs funded through tax credits confirms this.

    Other ways to save

    In 2011 the Kansas Legislature lost three opportunities to save money and improve the operations of state government. Three bills, each with this goal, were passed by the House of Representatives, but each failed to pass through the moderate-controlled Senate, or had its contents stripped and replaced with different legislation.

    Each of these bills represents a lost opportunity for state government services to be streamlined, delivered more efficiently, or measured and managed. These goals, while always important, are now essential for the success of Kansas government and the state’s economy.

    Kansas Streamlining Government Act

    HB 2120, according to its supplemental note, “would establish the Kansas Streamlining Government Act, which would have the purpose of improving the performance, efficiency, and operations of state government by reviewing certain state agencies, programs, boards, and commissions.” Fee-funded agencies — examples include Kansas dental board and Kansas real estate commission — would be exempt from this bill.

    In more detail, the text of the bill explains: “The purposes of the Kansas streamlining government act are to improve the performance, streamline the operations, improve the effectiveness and efficiency, and reduce the operating costs of the executive branch of state government by reviewing state programs, policies, processes, original positions, staffing levels, agencies, boards and commissions, identifying those that should be eliminated, combined, reorganized, downsized or otherwise altered, and recommending proposed executive reorganization orders, executive orders, legislation, rules and regulations, or other actions to accomplish such changes and achieve such results.”

    In testimony in support of this legislation, Dave Trabert, President of Kansas Policy Institute offered testimony that echoed findings of the public choice school of economics and politics: “Some people may view a particular expenditure as unnecessary to the fulfillment of a program’s or an agency’s primary mission while others may see it as essential. Absent an independent review, we are expecting government employees to put their own self-interests aside and make completely unbiased decisions on how best to spend taxpayer funds. It’s not that government employees are intentionally wasteful; it’s that they are human beings and setting self-interests aside is challenge we all face.”

    The bill passed the House of Representatives by a vote of 79 to 40. It was referred to the Senate Committee on Federal and State Affairs, where it did not advance. HB 2120 died in a senate committee chaired by Pete Brungardt, who was defeated in August.

    Privatization and public-private partnerships

    Another bill that did not advance was HB 2194, which in its original form would have created the Kansas Advisory Council on Privatization and Public-Private Partnerships.

    According to the supplemental note for the bill, “The purpose of the Council would be to ensure that certain state agencies, including the Board of Regents and postsecondary educational institutions, would: 1) focus on the core mission and provide goods and services efficiently and effectively; 2) develop a process to analyze opportunities to improve efficiency, cost-effectiveness and provide quality services, operations, functions, and activities; and 3) evaluate for feasibility, cost-effectiveness, and efficiency opportunities that could be outsourced. Excluded from the state agencies covered by the bill would be any entity not receiving State General Fund or federal funds appropriation.”

    This bill passed by a vote of 68 to 51 in the House of Representatives. It did not advance in the Senate, falling victim to a “gut-and-go” maneuver where its contents were replaced with legislation on an entirely different topic. Steve Morris, president of the Kansas Senate and a member of the moderate coalition, chaired the committee that killed this legislation. He won’t be in the Senate next year.

    Performance measures

    Another bill that didn’t pass the entire legislature was HB 2158, which would have created performance measures for state agencies and reported that information to the public. The supplemental note says that the bill “as amended, would institute a new process for modifying current performance measures and establishing new standardized performance measures to be used by all state agencies in support of the annual budget requests. State agencies would be required to consult with representatives of the Director of the Budget and the Legislative Research Department to modify each agency’s current performance measures, to standardize such performance measures, and to utilize best practices in all state agencies.” Results of the performance measures would be posted on a public website.

    This bill passed the House of Representatives by a nearly unanimous vote of 119 to 2, with Wichita’s Nile Dillmore and Geraldine Flaharty the two nay votes.

    Opposition to these bills from Democrats often included remarks on the irony of those who were recently elected on the promise of shrinking government now proposing to enlarge government through the creation of these commissions and councils. These bills, however, proposed to spend modest amounts increasing the manageability of government, not the actual range and scope of government itself. As it turns out, many in the legislature — this includes Senate Republicans who initiated or went along with the legislative maneuvers that killed these bills — are happy with the operations of state government remaining in the shadows.

    HB 2158 was victim of a “gut-and-go” maneuver in a committee chaired by Carolyn McGinn, another member of the moderate coalition. She will be returning to the senate next year, but probably won’t have the ability to stop legislation like this.

  • Wichita, again, fails at open government

    The Wichita City Council, when presented with an opportunity to increase the ability of citizens to observe the workings of the government they pay for, decided against the cause of open government, preferring to keep the spending of taxpayer money a secret.

    The occasion was consideration of renewing its contract with Go Wichita Convention and Visitors Bureau. I asked, as I have in the past for this agency and also for Wichita Downtown Development Corporation and Greater Wichita Economic Development Coalition, that they consider themselves to be what they are: public agencies as defined in the Kansas Open Records Act.

    In the past I’ve argued that Go Wichita is a public agency as defined in the Kansas Open Records Act. But the city disagreed. And astonishingly, the Sedgwick County District Attorney agrees with the city’s interpretation of the law.

    So I asked that we put aside the law for now, and instead talk about good public policy. Let’s recognize that even if the law does not require Go Wichita, WDDC, and GWEDC to disclose records, the law does not prohibit them from fulfilling records requests.

    Once we understand this, we’re left with these questions:

    Why does Go Wichita, an agency funded almost totally by tax revenue, want to keep secret how it spends that money, over $2 million per year?

    Why is this city council satisfied with this lack of disclosure of how taxpayer funds are spent?

    Why isn’t Go Wichita’s check register readily available online, as it is for Sedgwick County?

    For that matter, why isn’t Wichita’s check register online?

    It would be a simple matter for the council to declare that the city and its taxpayer-funded partner agencies believe in open government. All the city has to have is the will to do this. It takes nothing more.

    Only Wichita City Council Member Michael O’Donnell (district 4, south and southwest Wichita) gets it, and yesterday was his last meeting as a member of the council. No other council members would speak up in favor of citizens’ right to open government.

    But it’s much worse than a simple failure to recognize the importance of open government. Now we have additional confirmation of what we already suspected: Many members of the Wichita City Council are openly hostile towards citizens’ right to know.

    In his remarks, Wichita City Council Member Pete Meitzner (district 2, east Wichita) apologized to the Go Wichita President that she had become “a pawn in the policy game.” He said it was “incredibly unfair that you get drawn into something like this.”

    He added that this is a matter for the Attorney General and the District Attorney, and that not being a lawyer, she shouldn’t be expected to understand these issues. He repeated the pawn theme, saying “Unfortunately there are occasions where some people want to use great people like yourself and [Wichita Downtown Development Corporation President] Jeff Fluhr as pawns in a very tumultuous environment. Please don’t be deterred by that.”

    Mayor Brewer added “I would have to say Pete pretty much said it all.”

    We’ve learned that city council members rely on — as Randy Brown told the council last year — facile legal reasoning to avoid oversight: “It may not be the obligation of the City of Wichita to enforce the Kansas Open Records Act legally, but certainly morally you guys have that obligation. To keep something cloudy when it should be transparent I think is foolishness on the part of any public body, and a slap in the face of the citizens of Kansas. By every definition that we’ve discovered, organizations such as Go Wichita are subject to the Kansas Open Records Act.”

    But by framing open government as a legal issue — one that only lawyers can understand and decide — Wichita city government attempts to avoid criticism for their attitude towards citizens.

    It’s especially absurd for this reason: Even if we accept the city’s legal position that the city and its quasi-governmental taxpayer-funded are not required to fulfill records request, there’s nothing preventing from doing that — if they wanted to.

    In some ways, I understand the mayor, council members, and bureaucrats. Who wants to operate under increased oversight?

    What I don’t understand is the Wichita news media’s lack of interest in this matter. Representatives of all major outlets were present at the meeting.

    I also don’t understand what Council Member Lavonta Williams (district 1, northeast Wichita) suggested I do: “schmooze” with staff before asking for records. (That’s not my word, but a characterization of Williams’ suggestion made by another observer.)

    I and others who have made records requests of these quasi-governmental taxpayer-funded organizations have alleged no wrongdoing by them. But at some point, citizens will be justified in wondering whether there is something that needs to be kept secret.

    The actions of this city have been noticed by the Kansas Legislature. The city’s refusal to ask its tax-funded partners to recognize they are public agencies as defined in the Kansas Open Records Act is the impetus for corrective legislation that may be considered this year.

    Don’t let this new law be known as the “Wichita law.” Let’s not make Wichita an example for government secrecy over citizens’ right to know.

    Unfortunately, that bad example has already been set, led by the city’s mayor and city council.

  • Wichita could do better regarding open government, if it wants

    Tomorrow the Wichita City Council will consider renewing its contract with Go Wichita Convention and Visitors Bureau. The renewal will provide another opportunity for the council to decide whether it is truly in favor of open government and citizen access to records.

    Go Wichita, along with the Wichita Downtown Development Corporation and Greater Wichita Economic Development Coalition, contends that it is not a “public agency” as defined in Kansas law, and therefore does not have to fulfill records requests. Mayor Carl Brewer and all council members except Wichita City Council Member Michael O’Donnell (district 4, south and southwest Wichita) are comfortable with this tortured interpretation of the law. Inexplicably, the Sedgwick County District Attorney agreed with the city.

    I, along with many others, believe the city’s interpretation of the law is incorrect. So do many in the Kansas Legislature, and action may be taken there soon to eliminate the ability of Wichita to keep public records from the public. We can call it Gary’s Law, after Wichita City Attorney Gary Rebenstorf, who provides the legal advice the city relies upon.

    The legal stance of the City of Wichita certainly isn’t good public policy. Citizens should be able to learn how taxpayer money is spent. Agencies like Go Wichita, WDDC, and GWEDC need to open their check registers as has Sedgwick County, for example.

    In the meantime, there is nothing to prevent the city from asking Go Wichita to act as though it was a public agency as defined in the Kansas Open Records Act and to fulfill records requests. This would let Wichitans know that the city is truly interested in open and transparent government.

    It’s easy to bluster about open government. In his “State of the City” address last year, Mayor Brewer promoted the city’s efforts in accountability and transparency, telling the audience: “We must continue to be responsive to you. Building on our belief that government at all levels belongs to the people. We must continue our efforts that expand citizen engagement. … And we must provide transparency in all that we do.” Many other city documents mention transparency as a goal for the city.

    Until the city asks that these quasi-governmental organizations subject themselves to the Kansas Open Records Act, the message from the City of Wichita is clear: Accountability and transparency is provided on the city’s terms, not on citizens’ terms and the law.

    Why open records are important

    Here’s an example as to why this issue is important: In 2009 Mike Howerter, a trustee for Labette Community College, noticed that a check number was missing from a register. Based on his inquiry, it was revealed that the missing check was used to reimburse the college president for a political contribution. While it was determined that the college president committed no crime by making this political contribution using college funds, this is an example of the type of information that citizens may want regarding the way public funds are spent.

    This is the type of information that I have requested. It is what is needed to perform effective oversight. It is what the City of Wichita has decided to avoid.

    This item, last year

    Last year I asked that the city council approve the contract with Go Wichita only after adding a provision that Go Wichita consider itself a public agency under the Kansas Open Records Act. Following are a few notes from the meeting (video may be viewed here or at the end of this article):

    Discussion of this matter at the meeting reveals that city staff believes that the annual reports filed by Go Wichita along with periodic checks by city staff are sufficient oversight.

    City Attorney Gary Rebenstorf cited the law regarding enforcement of the Kansas Open Records Act, stating that the Kansas Attorney General or the courts is the next step to seek enforcement of KORA. While Rebenstorf is correct on the law, the policy of the Kansas Attorney General is to refer all cases to the local district attorney. The Kansas AG will not intervene in this matter.

    Randy Brown, who is chair of the Kansas Sunshine Coalition for Open Government and former opinion page editor of the Wichita Eagle was at the meeting and spoke on this matter. In his remarks, Brown said “It may not be the obligation of the City of Wichita to enforce the Kansas Open Records Act legally, but certainly morally you guys have that obligation. To keep something cloudy when it should be transparent I think is foolishness on the part of any public body, and a slap in the face of the citizens of Kansas. By every definition that we’ve discovered, organizations such as Go Wichita are subject to the Kansas Open Records Act.”

    Brown said that he’s amazed when public officials don’t realize that transparency helps build trust in government, thereby helping public officials themselves. He added “Open government is essential to a democracy. It’s the only way citizens know what’s going on. … But the Kansas Open Records Act is clear: Public records are to be made public, and that law is to be construed liberally, not by some facile legal arguments that keep these records secret.”

    He recommended to the council, as I did, that the contract be contingent on Go Wichita following the Kansas Open Records Act.

    John Rolfe, president of Go Wichita, told the council that he has offered to provide me “any information that is relevant” regarding Go Wichita. He mentioned the various financial reports his organization provides. He said he is unclear on the transparency question, and what isn’t transparent.

    Wichita City Council Member Michael O’Donnell (district 4, south and southwest Wichita) asked Rolfe if he had ever denied a KORA request. Rolfe replied no, perhaps not remembering that Go Wichita denied my request.

    Misunderstanding the scope of KORA

    In remarks from the bench Wichita City Council Member James Clendenin (district 3, southeast and south Wichita) asked the city manager a series of questions aimed at determining whether the city was satisfied with the level of service that Go Wichita has provided. He 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. Would this discourage companies from wanting to be contractors?

    First, the Kansas Open Records Act does not say anything about whether a company is providing satisfactory service to government. That simply isn’t a factor, and is not a basis for my records request to Go Wichita. Additionally, 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. Go Wichita is distinguished, since it is almost entirely funded by taxes and has, I believe, just a single client: the City of Wichita.

    Finally, we should note that the open records law does not represent government intrusion, as Clendenin claimed. Open records laws offer citizens the ability to get an inside look at the working of government. That’s oversight, not intrusion.

    Is the city overwhelmed with records requests?

    Wichita City Council Member Pete Meitzner (district 2, east Wichita) asked that there might be a workshop to develop a policy on records requests. He expressed concern that departments might be overwhelmed with requests from me that they have to respond to in a timely fashion, accusing me of “attempt to bury any of our departments in freedom of information acts [sic].”

    In making this argument, Mr. Meitzner might have taken the time to learn how many records requests I’ve made to the city. The answer, to the best of my recollection, is that I have made no requests this year to the city citing the open records act. I have made perhaps a half-dozen informal requests, most of which I believe were fulfilled consuming just a few moments of someone’s time.

    As to his concern over the costs of fulfilling records requests: The law allows for government and agencies to charge fees to fulfill requests. They often do this, and I have paid these fees. But more important than this, the attitude of council member Meitzner is troubling. Government should be responsive to citizens. As Randy Brown told the council, government should welcome opportunities to share information and be open and transparent.

    As for a workshop for city council on the topic of open records: This would probably be presented by Rebenstorf, and his attitude towards the open records law is known, and is not on the side of citizens.

    O’Donnell made a motion that the contract be approved, but amended that Go Wichita will comply with the Kansas Open Records Act. That motion didn’t receive a second.

    Wichita’s attitude towards citizens

    Randy Brown’s remarks are an excellent summation of the morality and politics of the city’s action and attitude regarding this matter.

    The council ought to be wary of taking legal advice from city attorney Gary Rebenstorf. He has been wrong several times before when issuing guidance to this council regarding the Kansas Open Meetings Act, which is similar to the Open Records Act. He’s taken the blame and apologized for these violations. He was quoted in the Wichita Eagle as saying “I will make every effort to further a culture of openness and ensure that like mistakes are avoided in the future.”

    But Rebenstorf’s attitude, as gauged accurately by Randy Brown, is to rely on facile legal arguments to avoid complying with the clear meaning and intent of the law.

    Why city council members — except for Michael O’Donnell — would be opposed to what I have asked is unknown. Perhaps they know that among the public, issues relating to open records generally aren’t that important. Citizens ought to note the actions of Mayor Brewer. The mayor could easily put this matter to an end. He speaks of wanting to have open and transparent government, but when it comes time to make a tough call, his leadership is missing.

    It’s becoming evident that Kansans need a better way to enforce compliance with the Kansas Open Records Act. It seems quite strange that local district attorneys are placed in a quasi-judicial role of deciding whether citizen complains are justified. If citizens disagree — and nearly everyone I’ve talked to thinks that the opinion issued by the Sedgwick County District Attorney is this matter is nonsensical and contrary to the letter and spirit of the law — they find themselves in the position of suing their government. That is costly, and citizens soon realize their own taxpayer dollars are used against them.