Kansas runs one of the darkest state governments in the nation, and its secrecy permeates nearly every aspect of service, The Star found in a recent investigation.
This is a transcript of a town hall held Jan. 18, 2018, in Olathe, Kansas, addressing those findings. The panel features three current and one former member of the Kansas Legislature and a legal expert on transparency laws.
Mike Fannin: Good evening and welcome everyone. On what is practically a balmy night here in Olathe.
I’m Mike Fannin. I’m the editor of The Star. And I want to start the program here with a few thank you’s. First I want to thank you guys. I want to thank everyone in the audience for coming out to join this discussion that’s an important one. And ultimately it’s you the citizen who is most affected by the decisions that are made in Topeka. Let me also thank our panelists. We have an outstanding group tonight and they’re taking time out of their very busy schedules during the legislative session to come visit with us. Thanks. Let me thank my team. Thanks to my team for the eye-opening journalism they’ve done on this topic. And for all their work in putting this together tonight. When we began talking about the series that became secret Kansas we knew the state was not exactly a model for transparency. But even we were surprised to find the extent to which secrecy had come to permeate so many aspects of our government. By the way if you haven’t read the series please, please do that on kansascity.com or I think we have some papers out here if you were interested. But if we were surprised our readers were shocked and mad and worried. So with the public interest in mind we wanted to make this meeting happen to bring the people and the representatives together to talk this through because we know that an open government is a government built on the foundation of our democracy. Now I want to introduce my colleague who’s here to moderate our panel.
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She was a Pulitzer Prize winning editorial writer at The Dallas Morning News. And she also covered the White House for The Wall Street Journal during the Obama years and now very fortunately for us she is our editorial page editor. So please give a hand for Colleen McCain Nelson.
Colleen McCain Nelson: Thanks so much for joining us tonight. We’re thrilled that you’re here and thanks to Olathe City Hall for letting us be here tonight. And thanks to everyone who is tuning in tonight on Facebook Live. If you can’t make it tonight you can watch from your couch or you can watch it later.
And as Mike said tonight’s discussion is part of the star’s continuing efforts to report on government secrecy and track efforts to make Kansas government more open. And the Star series in November exposed the lengths that government officials have gone to to keep information private. Everything from shredding notes in the Department for Children and Families to obscuring the authors of bills in the legislature. And we’ll cover a lot of that tonight. But I want to start by introducing a few folks from The Star who worked on the secret Kansas series. Here tonight we have Star reporters Laura Bauer, Judy Thomas, Brian Lowry, Andy Marso, Max Londberg, Chick Howland the editor on The Star Series, and Leah Becerra an audience editor at The Star and she’ll be monitoring the questions we get on Facebook Live. So let’s dive in and meet our esteemed panel. Tonight we’ll be talking with starting on my right state Senator Molly Baumgardner a Republican from Louisburg. Representative Stephanie Clayton a Republican from Overland Park. Representative Jarrod Ousley our lone Democrat from Merriam. Former state representative John Rubin a Republican from Shawnee. And attorney Bernie Rhodes who represents The Star and other media outlets on open records issues.
Tonight we want to tackle two basic questions. One, how did Kansas become so secretive? And two, how do we make Kansas government more open in the future? We’ve heard from hundreds of readers concerned about how their government is run in Topeka and people are concerned about secrecy. So tonight we’ll explore some of their questions.
We asked everyone who’s in attendance tonight to submit questions in advance if they wanted to. And we’ll get some folks in the audience a chance to share their concerns with the panel. And if you’re watching at home please submit your questions in the comments section on Facebook and we’ll take a few questions from people watching on Facebook Live. So we’ll try to cover a lot of ground. We have a lot of different topics to cover and if we don’t get to your question during the first part, I’ll save some time at the end for folks in the room to jump in with some follow up questions. But let’s start with the question of how can this government became so secretive. We have a question from the audience I’m not sure if she’s here but as Linda Hornbuckle here? If she’s not I know her question. Linda asked: How did we get here and how long has it been this way in Kansas? Why don’t we start with Representative Rubin.
John Rubin: Thanks, Colleen. Let me just say this issue has been a fundamental importance to me from the time — I’m an attorney and a retired federal administrative law judge — and before I ever entered politics this issue was important to me. The most fundamental of our founding documents, the Declaration of Independence, says that the that governments derive their just powers from the consent of the governed.
How can the government give their consent if they are kept in the dark and are not informed by that by their government on how and why they act? That has always been an issue with me. I can tell you when I was still on the bench — I live in Shawnee. My wife and I live in Shawnee and a situation occurred while I was still a federal judge not in politics where a vote was taken in the Shawnee City Council. It was on a tax matter I don’t even remember exactly what it was now as a tax vote of some time. We’ve discovered how our councilman and our ward. Now, this is a city issue but we’ll talk about the state of course as we go along here. But this is what inspired me to get involved. We called our city council person — city council woman — who happened to be a neighbor of ours because we knew how she voted on the bill. My wife actually did the call she’s in the audience tonight and asked why she voted the way she did on that particular ordinance. And her response shocked us. She said, “How do you know how we voted? You’re not supposed to know how we voted.” We got back from our city councilwoman.
That is among other reasons why I decided to leave the bench and run for the state legislature to try to correct that misconception that the governor should be kept in the dark on how their government operates. I’ll just briefly say one other thing. How do we get this way I can? Let me give you an example from an issue that I worked on when I was in the Legislature. For years Kansas, until we got the law changed when I was in the legislature with regard to disclosure to the public of affidavits (are called probable cause affidavits) supporting search and arrest warrants. For years, Kansas was the most secretive state in the nation on that issue. I worked with legislative research and confirmed that was the case. We were the only state of all 50 that automatically and completely sealed those records from public disclosure and put the burden on the public to hire attorneys litigate go to court to try to get disclosure of any information and probable cause affidavits. The reason for that goes back to the 1980s. Those of you that have been around as long as I have will remember an attorney general named Vern Miller. Apparently there was an issue when he was attorney general when there was a disclosure, an embargoed disclosure to the press of the contents of a probable cause affidavit supporting a certain arrest warrant that was embargoed because not all of the suspects had yet been apprehended and arrested.
And a reporter in that case violated the embargo and went ahead and reported on it and it caused problems for that particular criminal investigation. So the response of then attorney general Vern Miller was we’re going to introduce legislation to completely seal those records without question completely and always in all cases. And that’s how on that particular issue. We became the most secretive state in the nation. So that’s one — there are many examples — but that’s one.
Colleen McCain Nelson: Senator Baumgardner, how’d we get here?
Molly Baumgardner: Well, I’m going to tell a little war story myself as far as what was my experience with information being withheld. When I was 27 years old, I decided to do something really ridiculous and I ran for county-wide elected office that was to serve as a member of the Johnson County Community College board of trustees.
I got elected. In our first meeting my first meeting as an elected board member. We were to vote on the president’s contract.
And so, a week prior to the meeting I called the president’s office and said I haven’t gotten a copy of the contract yet. And so I was told to make an appointment with the president, which I did. I went in to meet with them and he said, “What would you like to know about the contract?” I said, “I’d like to have a copy of it so I can read through it.” And he said, “well you can sit here and ask me questions and I’ll answer them.” And I said, “No I’d just like to have a copy of it so I can read through it and come up with my own questions and I’ll get back with you.”
He didn’t do that. He said, “If I give you a copy of this you’re going to go put it up on every street corner, every post so that everyone can see it.” So I never got a copy but sure enough the night of the board meeting I asked the college attorney to please stand up because I did have some questions. What legally would prevent the president from giving me a copy. Well you know Kansas open records, I was supposed to get a copy. And you should too if you showed up. They didn’t give me a copy that night. They did give me a copy the next month when we had a meeting. I had no intention necessarily of sharing it with people but trust me I did go and get more than a hundred copies. And I shared it with lots of people. So how did we get here? We have folks historically who have been in power and how do you have more power? Well information is power. And if you keep the information, then others can’t make changes and decisions to make improvements. I just think also — and we’ll probably get into this a little bit later — but legislature — that’s been my experience that legislature, when they recognize there’s a problem they make an attempt to come up with a remedy. Someone introduces a bill goes through both houses get signed into law. And this is a very, it’s never quite simple. Often times will take five to 12 years to get it through but it will go through that process.
And then it really isn’t visited again unless someone, like you, share with us that OK it’s not really working right now and that there’s a problem and that we need to revisit it. We did do that with KORA (Kansas open records) two years ago. And I was told not to try and do anything because there’s no way it would get passed in the House and the Senate or signed into law by the governor. Well when someone tells me, “no way it’s not going to work,” it does make me try harder. And so — guess what happened? So KORA had been passed into law 35 years prior. It had not been changed in 35 years. And by golly, I did introduced the bill. We had an interim study committee. Dr. Kautsch is here today and I do want you to stand up and wave your hand please because he served on the Interim Committee. He’s a professor at KU and he helped us navigate through that process.
And we’ll talk a little bit more about it but you have to have folks that are willing to stand up and to fight the fight no matter how long it takes. And you have to bring in other people to help you along the way.
Colleen McCain Nelson: I want to talk a little bit about how we got here in terms of how the state handles child deaths which is something that we’ve written a lot about and has become a very important issue. Now, in 2004 lawmakers wanted a law to make information public after a child dies to find out what went wrong and how to keep it from happening again. And it wasn’t an easy sell and ended up being a compromise. And now we have the courts involved in this issue and those who don’t want the information public can petition the court and a judge often decides whether to release it. So I’m interested in why Kansas seems to want to keep information secret that other states make public. Representative Clayton?
Stephanie Clayton: All right. I think that part of the reason why the state would like to keep that information private is that in some cases I think that some child deaths have occurred due to state negligence.
That’s all that needs to be said.
Colleen McCain Nelson: That’s a solid answer. That’s direct. Representative Ousley?
Jarrod Ousley: Keep it confidential with the minors involved is what I always receive as an answer when I go to embark upon that. Because it’s a delicate situation. You’re dealing with the serious tragedy, possible neglect — possible criminal neglect. But you’ve got to protect the individuals involved, as well, to a certain extent.
I have been looking and talking to anybody that would speak with me and we’re looking for avenues. We currently have a new leadership team in our Department of Children and Families that I think wants to address some of that transparency issue. I met with her before session started and she spoke of it as a double-edged sword because on the one hand you get the lack of transparency to the public. You ge the public assuming that the department did nothing, which in some situations may absolutely be correct. But in other situations you may not get the department’s actions what they tried to do because they are also bound by that same confidential clause. So it’s — all I can say is I’m I’m looking into it I’m working with anybody that will work with me on it. And it’s obviously a very big deal and we need to continue to address it. And I’m trying
Colleen McCain Nelson: How should this be addressed Senator?
Molly Baumgardner: I think that we need to address the deaths of children the way we would address them if it involved a car seat. You know, the failure of a car seat to keep the child safe.
We know about the problem with air bags now because of — unfortunately — injury and fatalities. And so I think what we need to be looking at is what is the goal? And the goal is for children in Kansas to be safe. You’re only going to find out what happened where they weren’t safe, where they were injured or where they died. If you get all of the information gathered and that you have groups of people looking at that information not just one agency that all of us need to be looking at that information because that’s how you come up with the solutions. That’s how you discover what is the real problem and how you come up with the solutions to prevent that from occurring again. And again, if we look at it what other types of causes of death for children, minors would we be addressing differently. And we need to treat it just like that.
Colleen McCain Nelson: Bernie, I’m hoping that you can help us understand KORA, which is the Kansas Open Records Act. And what about Kansas law makes it so difficult for members of the media and the public to get information?
Bernie Rhodes: Nothing. It’s it’s not the law it’s the people. With all due deference to John Adams we’re not a country, a nation of laws not of men. We have men and women who are intent on, to quote Donald Trump, “staying on those swamp.” We have people who are only interested in their own self-interest. We have people running our government who have completely forgot who they work for. We have legislatures who have good intent but they’re thwarted. So we passed the amendment to the Kansas Open Records Act to allow police body cam footage to maybe be released if maybe the police want to. But if maybe the police don’t want to, then they don’t do so. So what do we have? We have situations like the horrific Las Vegas mass shooting. Within literally 48 hours, the Las Vegas Police Department has released a video that might as well been set to the theme of “Chariots of Fire” with heroic officers on the ground saving people.
I’m all for the police. My mother-in-law got robbed four times and moved in with me. Thank God the police caught these people! But we all now know that there were Los Vegas police officers on the floor of the hotel before any shots were riddled out. Where’s the body cam footage of that? We still haven’t seen it. There are 58 dead people. And there’s footage of why the police didn’t do anything. Why haven’t we seen that? We we amend the DCF statute so that records of fatalities are near fatalities are public unless somebody runs to court. And guess what? People know where the courthouse is. We have an actual statute passed several years ago to prevent court records from being sealed unless you jump through certain hurdles. Caleb Schwab was killed at Schlitterbahn. His father, a member of the legislature, settled the case. It had a complete abomination of the statute without going through any of the procedures. He did it. His lawyers did it. The lawyers for Schlitterbahn did it. The judge did it. We appeal to the Kansas Supreme Court who said that we’re going to hear the case. The problem is not that you can’t get things under KORA. The problem is people won’t give you things under KORA. There is an exception in KORA for personnel records. An employee of the public works department of the city of Merriam suspected his boss was stealing gas. On his own he borrowed a neighbor’s GoPro. He set it up. He caught the fellow stealing gas.
He gave it to the city. The city, to their credit in this regard, immediately went to law enforcement. The director was charged, pled guilty to a felony. My client, KSHB, be made an open records request for the video. Denied. It’s a personnel record. No it’s not a personnel record. It’s a video of one of your employees committing a felony against the citizens of the city of Merriam. Why would you possibly want to hide that? Other than, oh, it might make the city manager or the City Council whoever hired this fellow look bad.
So the problem is not KORA. The problem is the people behind KORA. The people who are responsible for enforcing KORA.
The Randy Leach investigation — I mean, my heroes are Mr. and Mrs. Leach, who have been trying for 30 years to find their son. My client, Fox 4, submits a Kansas open records request for the criminal investigation file. They’re told, “well we may give it to you. But first we have to review it and that will cost $4,000.” To review it! Randy Leach has been missing for 30 years. If there’s really something in there that’s going to allow the perpetrator to get away, don’t you think he’s gotten away by now? But the KBI is much more interested in getting their you know what that than sharing information, not only with Mr. and Mrs. Leach (who by God deserve it) but with the rest of us who by God deserve to know what went wrong with that investigation. So that’s the problem not the statue. Not anything these people have done and their role as a legislature. But the things that the people who are in charge of administering the law have done.
Colleen McCain Nelson: So I want to talk about how you operate in Topeka.
I think a lot of folks were shocked and really disappointed to learn that we don’t really know who is sponsoring most of the legislation in Topeka. And in the past 10 years at least 90 percent of the bills passed were anonymous, sponsored by entire committees instead of having named authors. And in Topeka, you can also have bills passed in one chamber only to be gutted in the other, replaced with entirely different legislation that has nothing to do with what you started talking about. And this gut and go procedure’s used regularly. And so I guess the first question is, Representative Rubin perhaps I’ll start with you, Why is this allowed? How is this OK?
John Rubin: Well it’s clearly not OK. It is allowed because people who’ve — both parties — but of course the party in control of both houses of the legislature now is my Republican Party, leadership in both the House and the Senate find that it adds to their ability to control legislation in the legislature and to enhance their power and authority by having things that way. Let me tell you specifically what I’m talking about — and I fought this probably the entire time I was in the legislature and it caused me some personal grief.
I told you what, among other things, led me to run for office. And when I got to the Kansas House of Representatives I was shocked to discover several things. Under the rules that govern the operations of the House and the Senate. One is would you all be shocked or surprised to know that, speaking from my perspective in the House of Representatives, most of the votes your representative takes on legislation on amendments — most of them are not recorded and you will find it difficult or impossible unless your particular representative is forthcoming to find out how they voted.
Start with the committee process. So much of legislation that affects all of your lives, all Kansans’ lives, originates with first hearings and in crafting of legislation and amending them legislation and committees. I was privileged to chair the House corrections and juvenile justice committee for four years and that is where most of the work the sausage making if you will that becomes public policy in Kansas gets started in committee. There are not only are no requirements under the house rules or the Senate rules that every member vote in committee substantive vote. I’m talking about now. On bills being drafted whether the is going to report it out favorably to the full body. The vote on the bill itself or any amendments to it be recorded. And in most cases they are not. In many cases of the votes in committee or voice votes. Sometimes it’s a show of hands but in no event is recorded unless the individual member asks that his or her vote be recorded which happens. But seldom. I don’t think that was right. I still don’t think that’s right.
When the bill is reported favorably out of committee and gets to the full House for a vote, it’s a two step process. First, the bill comes up on what are called general orders and it’s debated and possibly amended sometimes many times to a shadow of its former self in some cases on the House floor. None of those votes on the bill or its amendments on general orders are recorded either unless some particular arcane provisions of the rules are applied in individual cases when a certain number of representatives call for a recorded vote on general orders. If it passes general orders then the vote on final action in the next session is recorded. But the vote of general orders is not and quite often that bill undergoes substantial change by amendment. You’ll never know how your representative, unless it happened to be a recorded vote, you’ll never know how your representative voted on those amendments that may have completely changed the nature of that particular policy. You’ll never know unless it’s a recorded vote and usually isn’t. You’ll never know whether your representative changed their vote on that bill from from “aye” to “nay” or “nay” to “aye” between general orders and final action. You know, so that you can ask them why did you change your vote? Who did you talk to overnight that persuaded you to change your vote on that particular legislation?
You’ll never know any of those things, unless we record those votes and they are not recorded now. When I talked to Kansans, not only in my own district when I talked to them in the past and still now on this issue, I find that Kansans (almost uniformly — Republicans, Democrats, conservatives, liberals) are shocked to find out that most votes are hidden from them. It goes back to what I said prompted me to run in the first place. That response we got from our city councilwoman.
In my own committee, I tried to institute a rule — naive as I was — when I first took over the committee to require that all committee votes in my committee be recorded — by all members. And I had a revolt on my hands.
A number of committee members, of both parties, went to the speaker and asked that I be removed from my committee because of that requirement. I relented. Because I had to keep the committee operational. And so while I still strongly encouraged all my members to record their votes, I left it up to them. And most did not. I did. I always had every one of my votes in committee recorded but a number of others didn’t. So that’s an example. And let me just say one other thing, the other pernicious issue with regard to secrecy in the legislature that Colleen referred to, the gut and go process, there’s a process in the legislature that is even more pernicious than gut and go. It’s gut and go on steroids, it’s called bundling of bills.
And I tried to get that process changed by rule to with some limited success. I got it modified but I couldn’t get it completely changed. I’ll try to describe very briefly what that is. When the House passes one version of a bill and the Senate passes the other or vice versa then as probably all of you know it’s got to go to a conference committee to iron out the differences. But what happens in conference committees in Kansas is this: the conference committee members which are the chair, vice chair and ranking minority member of the House and Senate committees assigned to that bill. They talk about it and they try to work out differences in language on the bill that’s what the conference committee is for. But then under the joint rules of the House and Senate they can add to that bill, until I succeeded in getting it limited a little bit, as many other bills as they wanted to as long as it’s very tangentially related as a similar subject matter to the bill in conference. So I found when I first got to the legislature that we would get bills out of conference committee that had six, eight, 10, 12 other bills added in that conference committee report. Two big problems with that: Number one, unless you were on that conference committee, you as a member of the House or Senate, probably wasn’t even aware of everything in that bill. A lot of it probably wasn’t vetted in one or some some cases both chambers.
The rule is whatever is added is supposed to pass at least one house but I know of cases where it passed neither house. No hearings. No vetting. The members are in the dark about it. It was added to the bill.
Other problem, it can’t be amended on the floor when it comes out of a conference committee. It cannot be amended. And you’ve got one vote on it. So if there’s 12 things in there and you think six of those things are good public policy for your district and for Kansas and you want to vote for it and six you think are terrible and you want to vote against it. Too bad you got one vote. That’s bundling of bills. That’s that’s gut and go on steroids. I was successful in getting the rules amended four years ago to limit the bundling. I tried to get it down to one, just one bill and the conference committee report added to one. We got it limited to five and certain committees are still exempt altogether. That needs to change as well.
Colleen McCain Nelson: Well that was depressing. Representative Clayton where do we even begin to fix this?
I think to most people it would seem pretty obvious. You put names on bills you record votes. This shouldn’t be that hard. But I’ve had lawmakers tell me oh no it’s far more complicated than that all these dominoes would fall it would cause unintended consequences.
Is it that hard to fix this?
Stephanie Clayton: No.
Alright, so one thing that I have learned in my almost six years as a legislator is that people will do what they want to do and people will get away with what they think that they can get away with. When I first got elected I was given a lot of advice never put your name on a bill ever. Never answer an e-mail because you’re putting in writing to your constituent a promise or anything and they might use that against you. And number three was for the love of God don’t tweet anything. If you know me you’re laughing and you should. So now we see a number of years later — I tweet every vote that I make because my votes are awesome and you all should know about everything that I do. There are a couple of times where it’s really hard and there are a few times where there is a large voice vote and where it’s so obvious that it is unanimous then that I might not tweet yes that I voted yes. I always explain why when I’m in the dissent. And I thought well if I’m up there I cannot manage the conduct of my colleagues. In fact, and Mr. Rubin, representative the previous speaker, were not allowed to use each other’s names when we were up there on the same day as we’re all we all become Voldemort up there it’s kind of strange the way that our procedure and decorum tends to go.
But in any case our rules both joint rules for the House and Senate and many committee rules explicitly state that you cannot tell anyone how another member of the legislature votes. So in the House oftentimes if our votes are close on a bill that’s on general orders so not for final action a recorded vote or there a close on an amendment, the chair will call for a division vote. And so if any of you have been in the state house there’s a large board all of our names on it, you press the button at your desk if you’re yes you’re green and if you know you’re red. And then the count comes up. And so you were able to ascertain whether the amendment passed or failed and if this amendment or if this general orders vote did not get a roll call procedure done — and that’s where 15 members of the House raised their hands thus making it a recorded vote — then I could never take a picture of that board and tweet it. People who are in the gallery cannot do it. I would face censure and possible removal for that.
So oftentimes I’ll just be sitting there saying oh yes I voted on this bill and look at my awesome vote and it might have failed and people will say well, “why? Well you voted no.” And it’s — again — I can’t tell you that. So one of the difficulties that John ran into when he put forth what is kind of commonly referred to or wasn’t the time the Rubin rules and his committee was that he’s right. People of both parties of all factions kind of balked and didn’t want to do that. So people up there don’t like being told what to do. Nobody likes the goody two shoes stool pigeon. I can’t believe that I’m actually doing this but on Monday, after giving an opportunity to my colleagues to read the text of this draft and decide if they want to sponsor it, I will be filing a bill that states that in any bill it’s introduced in committee (and those tend to be are anonymous bills) whichever legislator introduces that Bill is listed in the minutes and on the actual bill whether it’s in print or online as the requestor. So if I’m in Federal and State Affairs Committee and I request a bill instead of submitting it as a sponsored bill, requestor it would be listed as representative Clayton. If an individual, an organization, a lobbyist — say — comes to the committee and says, “Hi I am lobbyist x y z and we would like to request a bill to expand puppy mills.” And the committee goes ahead and accepts that. On that the requestor would be listed as the Federal and State Affairs Committee on behalf of lobbyist X Y Z.
That way you would know who did what. Why is this needed? Well aside from the obvious that you should know; who is introducing these bills? But it’s also needed because we would oftentimes see tons of random bills introduced one that eliminated no fault divorce for instance with no one who wanted to claim it. There was once a hearing that was held in a committee that didn’t have a single proponent. So there was no one who was even willing to testify in favor of the bill. It had plenty of opponents. So this could actually end up making the legislature a bit more efficient. And isn’t that what we want to do with your tax dollars? Run things efficiently and be open. I see this as respect for the taxpayers. I hope my colleagues can forgive me and I sure do hope that they’ll sponsor and support the legislation.
Colleen McCain Nelson: Now we have a related question from a member of the audience.
Audience Member: Thank you. As I was one of those was a surprise, shocked with the term gut and go. I had never heard that before, didn’t understand it. So as it relates to the justification for not putting names on bills, I think it was Tom Phillips who was quoted in your editorial but — one reason was in his mind is that when you gut and go with a new bill that you don’t want your name associated with that bill. Correct? So, being simple, how difficult would it be to get rid of gut and go? Politically? Practically?
Colleen McCain Nelson: Representative Ousley, how tough would that be?
Jarrod Ousley: You know we could do it with the joint rules of the House and the Senate. In the very beginning of our biennium we have a rules debate which is where my colleague, my former colleague, often introduced Rubin’s rule so we are a self-governing body if you will. We have that debate and we have that opportunity in the beginning, like I said of every biennium.
It wouldn’t be that difficult. And I can say as the lone Democrat on the board that when I came into the house not only was I shocked at how laws were crafted, how many bills were bundled in conference committees, how long we were kept there past midnight till 2:00 a.m. 3:00 a.m. in the morning — sleep deprived before were allowed to cast our final vote upon these bills — but at how dissent was silenced and sometimes the gut and gill procedure was the only measure to get what you considered good policy out to the public. And I’ll give you a Medicaid expansion last session is example, that was will go on the floor and majority of the body voted to have that debate upon the floor because it was not making it out of committee.
So while I don’t want to explain the process and how it happened and I don’t necessarily want to defend the process. I do want to throw out just another maybe perspective of how it was a tool in the toolbox that I think should probably have a lot of dust upon it as legislators. But the other example I gave The Star when they were doing the reporting was the child welfare task force. We are racing a calendar when we’re in session. We have deadlines that creep upon you rather quickly. When the session starts, it’s go time and you have very little time to get all your hearings in, all your stakeholders in front of the committee to have all the public hearings and to do all that. And last session we were running out of time and we decided as leadership on children and seniors committee to contact our Senate colleagues and let them know in the interest of time to get this passed this session so that we could be having this discussion right now so that we can do our work last interim and get the media involved and get the public involved because I think that’s ultimately how you end all the secrecy is we have more functions like this town halls. So thank you everybody for being here. But we gut and go-ed a Senate bill and we got that task force put in. We fought a lot of pushback from the Department of Children and Families. And it was a real struggle and it really came down to like the wee hours of last session to do that. And like I said, it was a tool in the toolbox that I could use to get us to where we’re at today so we can have this conversation today about how we’re going to improve our child welfare system. So it wouldn’t be hard to eliminate. And I don’t want to be one of the legislators to tell you that it’s going to cause a domino effect because for all I know next biennium, with all the attention raised through public pressure media coverage, we could absolutely abolish it. It’s within our ability to do so. But I will just say we wouldn’t be having conversations — Medicaid expansion wouldn’t have passed the House and the Senate last session in order to be vetoed by our governor if if we hadn’t had that had that ability.
Colleen McCain Nelson: Next we’ll take a question from someone watching on Facebook live about a pretty simple step that the legislature could take to increase transparency and Laura Klemet Robison asks: Are there plans to increase the number of committee rooms that will have video or audio broadcast capabilities in the Kansas legislature? Senator, is that something that could happen in the near future?
Molly Baumgardner: Right now all of the committees that, I’m on four different plus a special, all of our rooms are doing live streaming audio. We do not have live-streaming video yet set up.
Is it easy to do? It’s easy to set it up. We’ve got tilt zoom cameras in this particular board room.
Colleen McCain Nelson: If we can do this. I mean you...
Molly Baumgardner:Well but we’re not talking about those we’re talking about those that are set up above. One of the limitations with, you know, the pan-tilt-zoom is you’re not going to see much. The audio was really kind of more crucial because it’s going to be at such a distance from where the committee members are seen. There are going to be tiny little people on the screen and you won’t even be seeing the individuals that are coming to testify and to speak.
Now, should we have it? Yes. And in fact I am having meetings videotaped and streamed has been important to me.
We started doing that years and years ago at Johnson County Community College. And then when I was a professor there, the president at that time said, “let’s stop streaming the board meetings.” Because they felt it was too cost prohibitive because we had professionals that were doing the camera work. And so I was a broadcast production and performance instructor and I said our students can do it. And guess what?
Even tonight at the board of trustees meeting our students are doing it and they’ve been doing it for the last six years. And you talk about public service, make what’s happening available to the folks. So, can we do it? Yes. I would think also a possibility rather than just having a stationary camera, is get the pan-tilt-zoom, partner with Washburn, KU, K-State, all of the different colleges that have broadcast production folks, and let them get real experience so that they’re ready to move on into careers in media.
Colleen McCain Nelson: Let’s take another question from the audience.
Audience Member: So how can we as as just citizens help make the legislative process more transparent? And I’ll amend that a little bit with a specific question to Representative Clayton, can I sit in the legislature and tweeted out a picture of that board?
Bernie Rhodes: Let me interject there
Yes, you can. But my clients who have a floor pass, which entitles them to actually report what’s going on on the floor, can not. I can tell you that I have had clients whose floor pass has been threatened because they accidentally showed the board that Stephanie was talking about during a broadcast. So not only is Stephanie barred, my clients barred. You as a citizen can.
So that’s your job for the rest of the legislative session.
John Rubin: Let me modify if I may. Let me modify that just a little bit.
If it is not a roll call vote, as representative Clayton talked about. If it’s not — if you don’t see 15 hands go up and it’s a roll call vote. It is technically impermissible for anybody, if you’re sitting in the gallery for example...
Bernie Rhodes: I’ll represent you.
Stephanie Clayton: Yeah, they’ll throw you out.
John Rubin: ...and take a picture of it, you will be asked to — I mean they’re not going todo anything else to you — but you will be asked leave the gallery.
But do you know who does surreptitiously still take those pictures when it’s some division vote that’s not a roll call vote. So they haven’t. Lobbyists do. And the lobbyists know and their clients know exactly how everybody voted. But you the citizen generally do not.
Stephanie Clayton: They have their own little board in the hallway with us on video. So if you come you too could stand in the lobby and see the board and see the way that we all vote. But for reasons I have yet to ascertain, those who are registered lobbyists are sort of able to see all of that action but you the taxpayers cannot. Tell me how that’s right
Audience Member: It’s not.
Stephanie Clayton: That’s what I thought
Colleen McCain Nelson: I want to talk a little bit more about the Department for Children and Families and The Star has been writing about the new era, Gina Meier-Hummel, at the Department for Children and Families and her vow for more transparency. Let’s start with Representative Ousley. What do you think that lawmakers should do to ensure that happens? Is there legislation that needs to be introduced this session to help protect the state’s most vulnerable children?
Jarrod Ousley: Yes.
Gentleman on the end here, mentioned that you know in 2004 there was an affected individual they could request that those documents remain classified. We’ve been looking into that. I know the Department itself has been looking into amendments in the CINC code. I actually just today went and spoke with them about a CINC code amendment to encourage law enforcement to get involved in the beginning and the investigative period.
Like, say we’re looking into a lot of aspects of where we can improve the outcome for the kids. I mean that’s ultimately what it’s about. And if that demands higher transparency then I stand ready to work with the new secretary and help eliminate some of the legislative roadblocks that could be in the way to improve that because she has been calling for more transparency.
Again we race the calendar. When I was speaking with her just today I informed her that we had until the second week of February to get the stuff introduced. The clock is ticking. So it’s a fast paced deal and I don’t serve on the judicial committee, I’m the ranking member on children and seniors, we’re not going to deal with the CINC code amendments. But I have been in close contact with our judicial chair about possibilities of coming through and I’m waiting patiently. They should have an announcement here, I’m hoping, early next week of some of their proposals that the legislature can also work on as well.
So I stand ready to read it help however I can.
Colleen McCain Nelson: Senator?
Molly Baumgardner: I just want to add. Representative Ousley I served on an interim committee last fall on foster care and one of the things that came to us was that the two agencies that the state was contracting we found you now if there is a child in need of care they’re put in foster care and child in need of care is CINC. But if they’re in foster care or if they have been taken out of foster and reintegrated with the family or if they have been adopted into a new family, there has to be a visit from the agency from a representative of the agency every single month to check on that child.
And what we found out: only about 70 percent of those visits had actually occurred in both agencies. So my question to the state was so what did we get as far as a refund? And they said, “What do you mean?” In a business if you hire a contractor to put up a fence but they only put up about 70 percent of the fence you’re either going to pay them 70 percent of what they had originally requested or if you’ve already paid them upfront, which is obviously a bad business move for the state, you are going to want to claw back on some of that. The state had never clawed back with either agency for services not rendered. And so one of the things that we as a legislature have to find a way. And oftentimes people forget, as a legislature we are responsible for that taxation or that revenue aspect and different agencies get funding but we don’t get to say this is how you should spend it. But we can insist that when you enter in contracts, if services aren’t rendered, the state needs a refund. And so those are some of the things that we — that contractual process — we need to make sure get tightened up.
Colleen McCain Nelson: Let’s take another question from the audience, is Chris Green here? OK. I’ll share Chris’s question with you because I think it’s a good one. He says, “I expect few people in the legislature would say aloud that they’re against transparency and yet it seems fairly common for bills that promote openness to struggle in Topeka and even when they do pass they seem to end up less potent as they work their way through the process. Who is it that fights against transparency measures and why” Representative Rubin, who is doing this?
John Rubin: I’ll name one name. It’s a one word name: leadership.
It is in the interests of leadership to control — to enhance their power to control legislation as much as they can. And a lot of these things that we see as offensive to legislative accountability and transparency, the things we’ve been talking about, are tools used by literate leadership to control the flow of legislation and get legislation they want passed and legislation they don’t want to see the light of day not come to the floor for a vote or face an unfavorable vote.
So if I had to put one word on it that would be it: leadership. Take the example of anonymous bills that we’ve been talking about. And we’ve been talking about it, so I assume you all understand what we’re saying here.
I think about 90 percent of bills in the Kansas legislature don’t have the name of any individual sponsor or any individual legislators sponsor on their committee bills. Now, let me say there are some legitimate reasons for that. I’m fully supportive of representative Clayton’s proposed legislation and I hope she’s successful with it. But even if we keep the process of committee sponsored bills there is a legitimate purpose. A bill that passes out of a committee with the approved with the broad approval of all or most of the members of the committee does carry weight with members on the House or Senate floor. That’s legitimate. It is not legitimate, however, if that’s used to mask who’s really behind the legislation. Which is why another rule I instituted in my committee is to require that the committee minutes reflected the sponsor of every bill that was introduced in my committee that our committee worked. And if the sponsor was a legislator that introduced it and if a lobbyist or another interested party asked the legislator to introduce the bill in my committee, that was reflected in the minutes too. So that at least by reading the minutes of my committee (which are published on the legislature’s website) you could get an idea of who’s behind each particular bill even if it were a committee bill. But on all of these things an answer that we hear from leadership quite often is these are necessary tools to get good public policy enacted. And I have a simple response to that.
If that’s the case, why is it that so many states have never even heard of these processes? There are a number of states that do not allow anonymous legislation at all. That do not allow and who have never even heard of bundling of bills or gut and goes. Those are practices that other legislatures absolutely have never heard of and do not practice.
And yet they get good public policy enacted for their states. So it’s so vital to the interests of Kansans that we have these secretive measures in place to get public public policy advanced. Why is that not a case with other legislators in other states?
Colleen McCain Nelson: I want to touch on two more topics quickly and then we’ll go to the audience first and more questions. Bernie, I want to ask you about an issue that’s been in the news a lot lately: Police body cameras. Why is it important for the public to be able to view the footage from police body cameras? And what concerns you have about the Kansas law?
Bernie Rhodes: Well my concern about the Kansas law is it leaves that up to the police department. And if you have a bad officer what do you think the decision is going to be by the department. Pretty simple isn’t it? Again I go back to my story about Las Vegas. We saw this body cam of these heroic actions of the officers on the ground but we still haven’t seen. That’s because it’s up to the department to determine. So the compromise that was struck at the legislature was let’s give the police departments carte blanche to decide. As a media lawyer, I don’t view that much as a compromise. To me that’s essentially giving in to the interests of the police department. Why does that concern me? Because as the death penalty, which is clearly the most power that a state government has because there it’s a deliberative decision to take someone’s life. So if you take that off the table the next most potent power the state has is to authorize its duly licensed law enforcement officers to kill someone in the course of duty.
I want to know if they’re doing that right. And and why are we having a body camera, if it’s not for me to determine if they’re doing it right? If the only person purpose of the body camera is for the police to have evidence to help them, then we have it ass backwards. The police don’t work for them. The police work for me.
You know, you’ve seen them all on TV. The courtroom scenes. The people of the state of New York vs. such and such, and such and such. Why is it the people of the state of New York? Because it’s our government. We are the people that have the authority to arrest somebody and put them in jail because we gave that authority originally and the state constitution and then in the state laws. So we have the right to know what the state is doing. And again what is after the death penalty the most severe power the state government has. So that’s why body cam footage is important. I commend those departments who released body cam footage. We haven’t really seen the Department release one in which in which the officers did something terrible. We can argue about some other issues and and some departments are releasing them.
Other departments have been caught and have to release them because they’ve done something procedurally wrong. But it’s sure not what we intended when we thought body cameras are going to help us. Body cameras are going to prevent the next Ferguson. No. Body cameras are going to cause the next Ferguson because the public is going to know that there is footage of the shooting that the police won’t release just like they would release of the name the police officer in Ferguson. And so that’s why I think it’s important because we as the public are entitled to know what our officers (they’re are officers, they work for us) are doing with the most lethal weapon the state is given them.
Colleen McCain Nelson: Representative Clayton I want to ask you about KanCare and any concerns that you have about KanCare and also about families not being told the specifics of plans of care and at the time that they’re expected to sign off on them. Are there changes to legislation that need to be made to make the Medicaid program more transparent.
Stephanie Clayton: There are myriad changes that need to be made into the program in order to make it more transparent. I could keep you here all night going over so many of these issues that I have discussed with constituents, in particular those who who are caregivers for children or adult children with intellectual and developmental disabilities. Because oftentimes we have individuals who are sort of placed on this managed care plan where you have care that should be separate from medical care that is not going to turn a profit because these are chronic conditions that these individuals are living with being sort of channeled into a for-profit realm. And that’s one of the problems here is that when we often talk about privatization the legislature loses that opportunity for oversight. Because I can have a secretary before me in committee and I can rake them over the coals all day and they can lie to me all day and they can and have and will, but I can at least ask those questions as a legislator. And as we talk a lot about how we spend our time in Topeka but really one of our primary jobs when we’re not in session is to act as a caseworker for the individuals that we represent when their government fails them. And so although I lack credentials as a social worker I’m picking things up pretty quickly because oftentimes people are not being properly represented and cared for in particular in this realm. Now we have ... I am slightly optimistic and only slightly so we have a bit of a pause being placed on the implementation of so-called KanCare 2.0.
We’ve seen some outspoken opposition to that on the side of the Senate and as much as I complain about the Senate a lot of times we need them and adore them because you guys come in and save us
when we really need it. So you’re not going to hear me praise the Senate often -- just happened. So there he is ... I have hope,
I have optimism because largely it’s because of all of you, it’s because you are raising an uproar as you should because this is your government and you deserve to have it function. And so I think as long as the pressure continues we will see a more transparent process implemented. But as legislators we oftentimes have to be mistrustful almost to a fault where we’re almost giving everyone the stink eye, you know, ‘What are you going to do now?’ Because if you’re not that way then they’ll get it right past you, they will. If there is a loophole, someone will find it. So it’s our job to make sure we’re sort of looking under the rug and checking over people’s shoulders to make sure that that doesn’t happen.
Colleen McCain Nelson: I want to open it up to a few questions from the audience. I see hands already. Laura is headed your way.
Audience Member: I can’t resist. Stephanie, I want to give you an example of transparency. Sunflower MCO reduce my daughter’s services. I filed an appeal. This has been going on for a year. We went to a state fair hearing on the 30th of October.
I just last week got the judgment from the judge who determined that because the mother contacted state legislators to report on KanCare ... because the mother reported the MCO and KDADS to a couple of legislators, therefore I’m siding with the MCO. So
My daughter has had her ability to self direct her services and her caregiver taken away from her by Sunflower, by KDADS and by this administrative law judge. And I have a question, ‘Who is the boss of these administrative law judges?’ This man was rude in that things he said about me in this document. Me, my personality, how I come across should have absolutely no impact on the decisions regarding my daughter’s services. This is a travesty. And I am going back, too. I’m requesting for another hearing, a redo of his hearing and then we’re going to a four-person KDADS, KDHE, and two more people are going to take a look at this. I’m one of three people in this audience that I know of that are looking at filing suit against the state of Kansas to protect my daughter.
Stephanie Clayton: Well I have to say that I can’t say that I blame you and I am shocked that it was mentioned in an unfavorable way.
You’re supposed to contact us. We work for you.
That is our job, and those channels of communication should always be open you should never be penalized for that. I think I speak for my colleagues here when I say we would like to talk to you after this is over and see what we can do is set up some kind of a meeting and above all I apologize for the way that you were treated. That is not OK. It is so terribly wrong. I think we would like to speak with you and help you.
Audience Member: I will put put my name on a bill. Evidenced by the legislators that are here tonight, and I do appreciate you participating, it’s not a party issue in my view it’s an integrity and a trust issue. Lots of people in the state legislature -- Mr. Rubin alluded to the leadership, I agree with that -- don’t trust us the public enough and don’t want us to know how government works. They know in many cases what they’re doing and how they’re doing it is wrong and isn’t worthy of trust. My question is, ‘Why does it appear that the legislators default thinking is to hide public information?’ You alluded to that senator. Instead the thought process should be automatically keep public information public only if there is a valid reason to secure it should be confidential and even then in very, very limited times it’s truly needed. It has to be done just done very judiciously and was huge limitations and deadlines that after those things have passed that they like they come out. Children dying under state care is a murder. It’s a homicide. If a child is gunned down in the street, the information is freely available. A child dies in state care is still a dead child and to hide it is an absolute abomination.
John Rubin: May I briefly respond to that. I absolutely agree with you. You have stated very well a point that I wanted to make here very clearly tonight. I’m going to sound like a lawyer talking now, but fundamentally it’s a presumption problem in Kansas.
I’ve had the somewhat unique perspective of having worked in both the state and the federal system. I was for many years a federal agency attorney and then I was a federal administrative law judge.
You’ve heard a lot of talk tonight about the Kansas Open Records Act. The Kansas Open Records Act has 56 -- see those white books over there on that desk; I brought it with me tonight -- has 56 exemptions that allow either total sealing of records or only redacted versions to be released. Fifty-six exceptions to the Open Records Act. The federal Freedom of Information Act, which I worked with most of my life, has nine. That is a microcosm of what’s wrong with the way we think in Kansas government and what I would like to see changed. And as I said I’m an attorney, we talk about burden of proof
In Kansas, we operate that the presumption is with the government that records should be sealed and kept secret and the burden is on the public, the media, whoever — the burden is on them — and includes paying to hire lawyers and going to court and sue if you have to get the records released. That’s backwards. It should be exactly the opposite way. If you really believe in government accountability and transparency to the taxpaying public. It should be exactly the opposite. The presumption should be full release of all records and the burden should be on the government and court proceedings and otherwise, the burden should be on the government to prove — and there are some legitimate exemptions, for example the law enforcement area protect a confidential informant or an ongoing investigation — but the burden should be on the government to prove that there’s an exemption that justifies not releasing the information. We need to shift the burden in this case in favor of the public and against the government.
Audience Member: We hear over and over that getting something done in the Legislature is complicated. And I understand that. It seems to be complicated by a bunch of rules and procedures that are maybe a little archaic. I don’t know. My first question is are these rules and procedures, as part of the open open records act, are they available to the public? And how do they get changed? And is there changes available to the public? And lastly, what can we do to influence and decide we don’t want those rules. You work for us. We’ll make the rules.
Stephanie Clayton: I would say first of all the rules are available to you, both the House rules, the Senate rules, and the joint rules are all available on our website, which is www.kslegislature.org.
So you can find that there the rules in their entirety. Oftentimes when we’re talking through procedure we might say oh well someone invoked Rule 1309, which is this which does this. We vote on our rules at the beginning of every biennium. So basically last year when we all came in and when we elected our leadership in House and Senate we also voted on our rules and so that’s when we made any amendments to the current existing rules and so on. There is a rules committee. I would urge you to look up the Rules Committees for both House and Senate and perhaps contact the members there and request changes that you would like to be made. Very rarely are changes made this year in the middle of a biennium because often times we’ve talked about the L word leadership. They tend to be disinclined to open up the rules for a possible voting in the middle of a biennium. It doesn’t mean that procedurally it can’t be brought up for a vote. But there’s a reason why I chose to make a statutory change for the changing a bill anonymity as opposed to making a rules change because statutory change although it involves quite a bit of moving through the legislative process, in this case it was a lot easier to do that than it was to try and bring up the rules again for a change.
So I hope that I’ve shed some light onto that and we can talk more afterwards if you have further questions.
Colleen McCain Nelson: This will be our last question.
Audience Member: My name is Debbie Miller from Independence, Kansas, and I’m an individual who makes a lot of open records requests just because we don’t have a transparent city government. The two biggest roadblocks I have when trying to invoke my right to open records are number one Kansas statutes involving KORA; number two the Kansas attorney general’s office who’s supposed to enforce the KORA. In both cases they seem more committed to protecting the violators than to enforcing the statutes. It is absolutely ridiculous. You have got to start rewriting those KORA statutes so they do indeed number one allow people access to the records. And then you have got anyone who’s in charge of enforcement of the KORA, they absolutely have to be required to enforce KORA. No more excuses for KORA violators otherwise. I’m really upset about that, guys. Thank you
Bernie Rhodes: Let me just confirm the Kansas attorney general is charged with enforcing the Kansas Open Records Act. The Kansas attorney general going back to my discussion about the Randy Leach files, it’s the Kansas attorney general who represented the KBI, who told me it was going to cost 4000 dollars, so you know what I did? I wrote to the assistant attorney general who’s in charge of Kansas open records training. You know what she told me? I didn’t use the right for the form.
She told me I didn’t use the right form.
And then when I explained to her you know I really wasn’t filing an appeal. I was just, I was appealing to the fact that the plumber’s house always leaks and the mechanic’s car never works because they’re too busy doing their other jobs. That maybe the attorney general was just too busy doing their job to do their job on KORA. And she said, no we did it right. Too bad. That’s the agency who’s supposed to be charged with doing it. So I feel your pain.
Colleen McCain Nelson: I hate to end on a low note, but it’s clear that there is work to do. With that we’re just about out of time.
I really want to thank everyone on the panel for a really informative and constructive conversation about secrecy and government. And I want to thank everyone here as well as folks who watched on Facebook Live. As I said it’s clear that we all have a lot of work to do on this front in Kansas. I pledge to you that The Star will cover this relentlessly.
We plan to continue this conversation. So please stay engaged, stay tuned and call your legislator.
Thanks for joining us and good night.