Mayor Sly James on airport terminal secrecy
Kansas City Mayor Sly James last month threatened to file ethics complaints against his council colleagues if he learns they have revealed information from closed council meetings.
The threat itself came during a closed session.
Council members say the threat is one example in a pattern that illustrates a culture of secrecy at City Hall, particularly as it applies to the effort to build a new $1 billion terminal at Kansas City International Airport.
They point to the many closed-door discussions being held about the airport and raise concerns about being asked to sign nondisclosure agreements before viewing KCI proposals.
James told The Star he warned the council that divulging confidential information would result in an ethics complaint, but he said he had not initiated an investigation into leaks.
“I said if you reveal confidential information and it’s proven that you did, I will file an ethics complaint,” James said Thursday. “Just as if I, as an attorney, were to reveal confidential information about my client, an ethics violation would be filed against me.”
The Missouri Sunshine Law requires elected bodies to hold discussions and votes in public settings, with some exceptions including receiving legal advice, negotiating a real estate deal or discussing personnel issues. Such negotiations can be held in private.
Kansas City’s ethics code says it’s a violation to divulge information from closed sessions without authorization.
But some council members have voiced concerns that some of their closed-session discussions don’t meet the exceptions in the Missouri Sunshine Law and should have been discussed publicly. A majority of council members at a July 27 council business session rejected a motion to go into closed session to discuss KCI issues.
“My concern is I continue to believe we overuse closed sessions,” said Quinton Lucas, a Kansas City councilman. “I think the spirit of the Sunshine Law is not for council to deliberate on myriad issues on public policy in secret.”
James said he is concerned about others revealing legal advice. Advice given by lawyers to clients is in nearly all aspects held confidential; if a client reveals legal advice to others, attorney-client privilege is considered waived and the client can no longer claim confidentiality.
“I am an attorney, and I believe in attorney-client privilege,” said James, a lawyer by profession. “After 28 years of being involved in litigation, I know what happens when clients start to tell people what goes on in attorney-client advice. It opens all sorts of avenues for litigation.”
Teresa Loar, a Kansas City Council member, said too much of the KCI project has been shrouded in secrecy. The city’s pursuit of a single terminal at KCI began in earnest with a private meeting involving James, council member Jolie Justus, City Manager Troy Schulte, Aviation Director Pat Klein and Burns & McDonnell held in late March at the River Club, a members-only downtown restaurant.
In May, The Star broke news about an arrangement between James and Burns & McDonnell to design, build and privately finance the $1 billion project with no competitive bidding. Since then, lawyers told City Hall it should open the project other proposals.
“Whether the mayor is concerned about information leaking or not is kind of irrelevant to me,” said Loar. “I work for a public body and the taxpayers of Kansas City, so I don’t have any secrets unless it’s a personnel issue or a real estate price issue. I think everything should be out in the open.”
Jay Hodges, a former James aide, filed an ethics complaint against Loar on June 22 for what he believed was a leak of legal advice given to the City Council during a closed session that month to discuss the KCI issue.
“I just did it on my own,” Hodges told The Star.
The complaint centered on a June 6 story in The Star in which Loar explained that the council had been told by attorneys that City Hall should extend the deadline for competitive proposals on KCI by 45 to 60 days to be more in keeping with industry norms. Before that meeting, the city was prepared to give three weeks for proposals.
But some council members don’t believe information like widely available procurement practices constitutes sensitive legal advice.
“If you were in the middle of a lawsuit and the council gets briefed and we’re told some specific sensitive strategy that the city is working on, and then I went out and told everybody so that our opponents knew and understood our strategy, that could be a harmful leak,” said Katheryn Shields, a Kansas City councilwoman. “But that’s pretty narrow and, trust me, if there was something that strategic, they would never tell us.”
The extension of time to submit proposals may have led to more companies getting involved in the KCI project.
Four companies submitted KCI proposals. A selection committee made up of Justus, Schulte, Klein, council member Jermaine Reed and two other Aviation Department employees will hold its first meeting Aug. 14, four days after a final deadline for submissions.
On July 27, the Kansas City Council voted to approve a resolution that gave other council members the right to attend the Aug. 14 presentation.
Council member Heather Hall introduced the measure. She said she pursued the resolution for transparency and accountability.
“Anything that is appropriate to share with the voting public, I think the people should have that information,” Hall said. “Otherwise, how can they make an informed vote?”
Last week, Kansas City’s legal department sent out nondisclosure agreements that council members would have to sign in order to attend the selection committee meetings. It was seen by several current and former council members as a break from typical City Hall norms.
“I’ve only signed one nondisclosure agreement in my life, and that was after I was on the council,” said Dan Cofran, a semi-retired attorney who served on the Kansas City Council from 1987 to 1995. “It had to do with my legal work.”
Some council members want the opportunity to see and learn about all the proposals, rather than rely solely on the recommendation of the selection committee. The details of the proposals are expected to be kept closed by City Hall until the city reaches a memorandum of understanding with the winner.
Lucas, who said he didn’t plan to attend the selection committee meetings, still raised objections to signing nondisclosure agreements.
“I believe it’s a restraint on our ability to converse publicly about any proposal; that may be the intent,” Lucas said.
Several council members have pushed back on signing the nondisclosure agreement as a requirement to enter the selection committee meeting.
“They can if they want to,” James said, when asked if council members were still required to sign the agreements. “They don’t have to.”
Would members be barred from entering the selection committee meetings without signing the agreement?
“I’m not going to get into counsel advice,” James replied.
James rejected the notion that secrecy has enshrouded the KCI discussion. But he said some information should remain confidential.
“It’s keeping information that is confidential, confidential,” James said. “There’s certain information that should be confidential ... you can’t negotiate in public.”
It’s not clear what’s contained in the KCI submissions that warrant confidentiality. Geoffrey Stricker, managing director of Edgemoor Infrastructure & Real Estate, which is one of the four companies hoping to land the KCI contract, said his company had not requested confidentiality.
“Nothing in our submission delivered on July 27th was marked confidential,” he said in an email to The Star.
James said one of the four proposers had insisted on confidentiality but did not know which one.
Kristi Widmar, spokeswoman for Burns & McDonnell, said the firm had not made that request. Ian McNamara, a representative of AECOM, also said his company did not make the request. Jim Heeter, former chief executive of the Greater Kansas City Chamber of Commerce who now represents KCI proposer Jones Lang LaSalle, did not respond to a question by The Star about whether it had made the request.
It remains to be seen who attends the Aug. 14 selection committee meetings, when the proposals are first unveiled, or whether anyone who hasn’t signed a nondisclosure agreement will be kept from observing the process.
Alissia Canady, a Kansas City councilwoman, took a measured view about the process of choosing a KCI proposal.
“I don’t think it’s anyone’s malicious intent to undermine this process,” Canady said. “My observation is all these things being attempted — hiring outside counsel, nondisclosure agreements — are attempts to perfect the imperfect way this all came about.”