Just 15 minutes ago, I received the formal opinion regarding my two allegations of KOMA violations at JCCC. I will provide my initial thoughts and reactions, in no particular order. Here is a link (PDF) to my original request for review to the DA: http://benjaminhodge.org/wordpress/wp-content/uploads/2009/04/request-for-review-of-koma-to-county-da.pdf. In short, I made two separate allegations (one of which was, at one point, privately confirmed by the JCCC attorney), and DA Steve Howe found that neither of these circumstances violated KOMA. As a result, I believe the law is now meaningless; either a separate opinion must be obtained, or the law must be re-written.
To summarize my reaction to Howe’s review: I am of the opinion that DA Howe failed his first test of impartiality toward the rule of law. Before this opinion, DA Steve Howe was a “blank slate.” Prior to him being elected, the primary concern of many county Republicans toward Howe had little to do with abortion, and everything to do with whether Howe would blindly interpret each and every law, without regard to the opinion of the elite political class. While the main purpose of my request of Howe (to review my allegations) was to make sure that KOMA is followed, I have been of the opinion that a secondary, indirect benefit of this review would be that the public would have a greater understanding of how DA Howe would rule in a very simple case involving a non-abortion-related issue, and that involved the reputations of some of his strongest supporters, many of whom have strong in-name “education-related” ties to JCCC, through the private JCCC Foundation non-profit organization, which Lynn Mitchelson used to chair (prior to the JCCC board), of which Jon Stewart was formerly a member, and of which Mark Ferguson was a member.
Thoughts on Howe’s review of each complaint, in no particular order.
- Complaint one, regarding a majority of the JCCC board agreeing, though serial communications, to the contents of the letter to the editor, when the overall discussion involved the government-related topic of property taxes.
- A key part of Howe’s ruling is at the end of page 5, going into page 6: “While the letter involves a majority of the membership of the Johnson County Community College Board of Trustees, it did not appear to be intended to reach agreement on a matter that would require binding action to be taken by the body or agency. Giving thorough consideration to the needs of students and taxpayers in addressing the undecided issue of raising the mill levy does not require binding action.”
- 1. Unless I’m mis-reading this, the implications of the above page 5 statement are huge, and either Howe is mis-interpreting the law, or the entire law needs to be changed. What Howe is saying is that a majority – indeed, 100% of the membership – of any local government MAY participate in serial communications involving government-related business, provided that they never say, “This is definitely how we’re later going to vote on the matter (wink, wink).” Meaning, that the 13-member Overland Park City Council could have 3 separate in-person meetings of 5 council members (but collectively involving every single member, and with some members attending two or more meetings) to talk about virtually any topic (including what was talked about at the other 5-person meetings), provided that they never officially agree to vote in a particular manner.
- 2. To re-state: there is now a giant hole in the KOMA law, if this opinion stands.
- As I documented in my complaint to DA Howe, even JCCC attorney Mark Ferguson provided the opinion to the board in December 2008 that there was a “technical” (whatever that means) violation of KOMA.
- Complaint two, regarding a 60+ (off the top of my head, I think the exact number was 64) item budget-related list (of possible cuts) that was shared during executive session (that was intended to review President Calaway’s job performance). The redacted list is provided in my KOMA complaint (again, link provided at top of Email).
- Only 2 of those 64 items (3.1% of the list) contained names of employees.
- Two other items (another 3.1%) contained job titles (without names).
- So, only 6.2% of the list is even THEORETICALLY exempt from KOMA. I will note that I do not believe that, merely because an employee’s NAME or TITLE is mentioned (without job performance-related content), that the information (surrounding that name or title) should be off-limits to the public.
- Therefore, 93.8% of this list is non-exempt from KOMA.
- In the opinion, Howe makes no mention (or even a hint) of the great proportion of the non-exempt content.
- It must be asked: just many items must a budget-related list contain, before it should be considered inappropriate to talk about during a closed meeting? Must it contain 1000 items? 10,000 items?
- Again, I find that the functional result of this interpretation of KOMA is that the law is essentially meaningless, if it stands as is. Any local government can now easily violate the law by either:
- i. Adding ONE employee name to any discussion of the budget during executive session (whether the discussion is verbal or in writing);
- ii. Or, by a local government merely announcing a “performance evaluation” (in bad faith) of the city manager or school president, and then going into an executive/closed meeting where the budget can be discussed in great detail.
- On page 7, Howe writes: “Dr. Calaway said he provided this list in response to the rating that Trustee Hodge had indicated on Calaway’s performance evaluation in the area of fiscal operation and private gifts.”
- i. Let’s first address this “in response to Trustee Hodge” nonsense.
- 1. To be abundantly clear, I will re-state what I’ve said in the past: contrary to what has been falsely said by others (including Lynn Mitchelson and Steve Rose), I did not in any way ASK for the budget-related information. Nor did I – intentionally or unintentionally – “set up” Calaway. What I wrote – exactly – was this: “Let me see this year’s final budget proposal (and whether there’s a tax increase), and then my rating will change.” I effectively wrote to Calaway that, on the next evaluation, if he didn’t propose raising taxes, I would rate him higher. In theory (what he “says”) Calaway provided the 64-item list of possible budget cuts because of what I wrote on his evaluation. It was entirely his choice (without undue “pressure”) to provide the list.
- 2. Regardless, it’s largely irrelevant to talk about the motivations for why Calaway did what he did. The law looks primarily at WHAT Calaway and JCCC actually DID, not WHY we did it. Even if I had asked (explicitly) for him to provide the budget-related information, then I would have been in violation of the intent of the law, and Calaway would have still inappropriately followed through with my request for him to violate the law.
- 3. Why is Howe believing what Calaway tells him? As I wrote on March 28 of this year, I’ve never seen anybody dance as much on an issue as Calaway has on this, and he’s given us four reasons, at different times, with regard to why it’s OK to share this budget information during a closed meeting (link: http://www.redcounty.com/calaway-offers-four-different-reasons-budget-release-sticking-now-two). At one point, Calaway wrote that we did discuss the budget during executive session, and another point, he was quoted by The Gardner News as saying there was no discussion. And honest people just do not act like Calaway has acted – I mean, who in the world is this guy, to send a “cease and desist” letter to me, in that it says I’m the one being defamatory to state that there was a violation of the law (the letter itself is possibly defamatory, given that I had written evidence from our own attorney telling us that there had, in fact, been a violation of the law).
- Also on page 7, Howe writes, “While the Trustee’s deadline in turning in the evaluation paperwork was approximately one week earlier, Dr. Calaway said he did not receive Trustee Hodge’s written evaluation until the morning of February 19, 2009. As a result, he had virtually no time to prepare any kind of response. He decided the list for this purpose.”
- i. I must ask: is DA Howe indicating that, if Calaway had had more time to prepare other budget-related information (to either talk about or to share during the closed meeting) – given that “more time” generally results in “greater detail” – is Howe suggesting that it’s acceptable to discuss in even GREATER detail budget-related information? Isn’t this a problem for Howe?
- ii. What Howe fails to mention is what I’ve documented, and what I told Howe’s investigator: after Calaway handed us the 64-item budget list (near the end of the executive session), he made it clear to us that this was “hush hush” (I’m paraphrasing) material.
- iii. On this “deadline” – yes, I can show you an Email from my secretary (not the board chair, etc.) asking me to get my evaluation to her a week earlier. If I owe anybody an apology, it’s not to Calaway, but to my secretary, who printed the short (what, maybe 5 pages) document from Email that day, rather than the week previous. This was a perhaps-10-minute inconvenience for the secretary. Moreover: I didn’t work for Calaway, but he worked for me, and for the public. Especially now, after experiencing all of the dishonesty within Calaway’s administration, I could argue to you why he shouldn’t have ANY time to read the evaluations ahead of the executive session. This guy has a PhD and gets paid $250,000+ a year to merely attend meetings all day; he should be able to immediately justify to a board member how and why he has acted, and he should not need a week to “prepare for” a short job performance evaluation.
Also, I will tell you this: After talking with reporters, with editors, with legislators, with attorneys, with the Kansas Press Assocation, and with Assistant Attorney General Mike Smith — and while I’m not one who looks, alone, at “consensus” — I will say that it gives me great confidence in going forward that virtually nobody of significance has agreed with what DA Steve Howe today writes.
I look forward to hearing your opinions on how to best proceed. I will say that I have been impressed with the good-government-related work/opinions so far from Attorney General Steve Six, and I am aware that he has the authority (though it’s uncommon) to re-review an opinion previously given by a district attorney.
Thank you for your time.