On Windy Hill: Remembering Cedar Crest

I drove up to Topeka yesterday to a seminar about Kansas open meetings and open records laws. I remember most of what I heard at the seminar last year, but I like to be informed about changes in the law and also learn from people who deal with those laws regularly. For a number of years, the Kansas Attorney General’s Office, Kansas Press Association, Kansas Newspaper Foundation, and the Kansas Sunshine Coalition for Open Government have scheduled these seminars around the state to remind government employees, elected officials and citizens about government openness laws.

Although I had to understand open government laws during my years in the newspaper business, my interest is as a citizen. I believe these important laws help protect our freedom.

Kansas’ open meetings act states: “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.” Not difficult to understand.

We elect people to make decisions, but the law allows us the right to look over their shoulders while they make decisions. As Assistant Attorney General Lisa Mendoza said yesterday, open government laws “increase accountability and deter official misconduct.”

I came home from yesterday’s meeting slightly encouraged about government openness in Osage County, but more discouraged about open government in Kansas.

My encouragement came from the presence at the meeting of  two elected officials and a public employee from Osage County. I am proud of them for wanting to learn about open meetings and open records laws that affect their duties. Their attendance proved they cared about their service to the public.

I wish we had more officials like them, as too many seem to believe ignorance of the law will protect them and the citizens are here to serve them. A reminder of that during the meeting was the source of my discouragement.

The subject of Cedar Crest was brought up from the audience, but the panel didn’t need any prodding to recall the trampling of the state’s open meetings laws by many elected state officials who should have known better. In case you don’t remember, early last year the governor invited a number of legislative committees to the governor’s mansion to discuss issues that were to be decided during the legislative session. Although it was not unplanned that all attendees were of the governor’s same political persuasion, the problem was that majorities of legislative bodies gathered to discuss the public’s business in private, which is against the law. They showed either no regard or no understanding of the state’s laws that define how they conduct public business.

What eventually resulted from a complaint filed by the Topeka Capital Journal against these secret meetings was a determination by the Shawnee County District Attorney that “technical” violations of the law occurred. Yesterday, Todd Hiatt, Shawnee County assistant district attorney, explained that was the only supported finding after hours of interviewing legislators, many who could not remember the details of conversations had with other members of their committees or the governor during their secret meetings at Cedar Crest.

Technical violations seem to have become the answer to many open government complaints in Kansas in recent years. Although Hiatt explained that he wrote a nine-page description of how the district attorney applied the law in making determinations of technical violations, Kansas’ open meeting law has no reference to technical violations.

As Mendoza said, each case is fact driven and the law is to be “interpreted liberally” in favor of the public and government openness. In the Cedar Crest case, the facts showed the law was violated. A finding that lawmakers technically violated the law, but did not actually break the law, does not seem to be an interpretation in favor of the public.

What Hiatt didn’t say yesterday was that few facts were gathered. Most of the legislators who attended the secret meetings developed amnesia or expressed ignorance about state openness laws.

One thing the investigation revealed to anyone paying attention was that these lawmakers didn’t care about laws already on the books that mandated their conduct, they only cared about new laws they or the governor hoped to enact. Their attitude appears to be “We make the laws, we’re not subject to them.”

Two of yesterday’s panel members spoke what should have remained on all citizens’ minds as a result of the Cedar Crest snub of the public.

Mike Merriam, a Topeka attorney who has fought a number of open government battles in Kansas over the years and represented the Topeka Capital Journal in the Cedar Crest debacle, said the case “revealed an astonishing level of ignorance about open meetings among legislators.”

Doug Anstaett, executive director of the Kansas Press Association, was more than astonished about the investigation, saying legislators revealed “a disgusting lack of knowledge about the most important laws we have.”

I share his opinion that open government laws are some of the most important we have, and share his disgust about these elected officials.

Actually revealed during legislators’ attempt to excuse the secret meetings is they would prefer to appear incompetent to their constituents rather than owning up to their behind-the-door discussions about upcoming legislation.

Many said they couldn’t remember what was discussed or with whom. I wonder if they expect us to trust the competence of any elected official who can’t remember what was discussed during a meeting with the governor. If the memory excuse is fact, I’d think the governor would be trying to remember why he ever invited them over for dinner in the first place.

Merriam noted that during the recent legislative session some of the legislators involved in the Cedar Crest meetings made “veiled efforts” to change the state’s open meetings laws “so they could do whatever they want.” I hope citizens remember these arrogant public officials.

The facts of this case are discouraging for those who believe in open government. Legislators had secret meetings to discuss public business. A finding of no laws broken was due to no competent witnesses. In effect, the law allowed that if all the participants in a secret meeting say they don’t remember what they said to each other, they aren’t required to comply.

With this happening at a state level, it should be no surprise local officials are often excused because of ignorance, and local prosecutors claim technicalities during the application of Kansas open government laws. The “can’t remember” defense will now be on the list of excuses.

Those arrogant legislators are right, though. Kansas’ open government laws should be overhauled. The loopholes that allow ignorance, incompetence and technicalities as excuses for lawbreaking need to be closed. But citizens now have little reason to trust lawmakers to write those laws or follow them once enacted.

Maybe if the informed electorate would just remember to demand accountability from their representative government, my trip to Topeka next year won’t be as discouraging. Or maybe the people would better serve the elected officials if we’d all just forget about it.


On Windy Hill, Wayne White sometimes writes about things he thinks about. He not only lives on a windy hill, he’s been known to be a windy writer.

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