Gov. Sam Brownback and aides still consult with ex-staffer, now a lobbyist, records show

David Kensinger stopped serving as Gov. Sam Brownback’s chief of staff in 2012, but email records show he continues to have a say in the governor’s schedule and decision-making.

Brownback’s political opponents have claimed — and the administration has disputed — that Kensinger has maintained an unusual level of influence since leaving to become a lobbyist.

Emails between Kensinger and top administration officials show the governor’s office consulted Kensinger on a variety of matters during the year Brownback ran for a second term, according to documents The Wichita Eagle received through an open records request.

When the governor’s office planned a trade mission to China last year, it sought his input.

He was included on an email about a bill seeking state control over federal health care dollars two days before Brownback signed it.

He was apprised of the governor’s meetings and strategy sessions and consulted about an invitation for the governor to speak about education and tax policy at the Aspen Institute, a Washington-based think tank, last July.

It’s difficult to tell whether he had a say in other policy matters and in personnel decisions because the governor’s office withheld emails that it said fit exemptions in the state’s open records law.

Brownback went on a trade mission to China with Commerce Secretary Pat George in November. Before the trip, in late March 2014, Denise Coatney, the governor’s director of scheduling, sent an email about locking in the dates and asked for “Thoughts, concerns?”

The recipients included Landon Fulmer, then the governor’s chief of staff; Eileen Hawley, his director of communications; and Mark Dugan, his campaign manager. Kensinger received it too.

“No issues here,” Kensinger replied 16 minutes later.

Rep. John Carmichael, a Wichita Democrat, said the apparent advisory role for a lobbyist was a cause for concern.

“You then have to wonder who is running the governor’s office — the governor, an elected official, and his Cabinet secretaries, or is it an outside lobbyist who’s really pulling the strings in state government?” he said.

Kensinger also was included when Lt. Gov. Jeff Colyer emailed top administration officials April 21 about Missouri Gov. Jay Nixon’s decision to allow a controversial health care compact to go into law without his signature in 2011. Brownback signed an identical bill into law two days after Colyer’s email.

Kensinger did not respond to interview requests. The governor’s office sent a brief response.

“As we have said before, the governor consults with a wide range of people to hear diverse opinions on issues and topics,” Hawley, the governor’s spokeswoman, said in an email.

Before releasing the emails, the governor’s chief counsel reviewed them, made redactions and selected emails to withhold. It cited three exemptions to the state’s open records law for withholding emails.

One exemption covers “notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed.” It is intended to protect public officials’ deliberation on policy.

Lyndon Vix, The Eagle’s attorney, said that invoking this exemption “really implies these emails include policy discussions with Kensinger.”

Max Kautsch, a Lawrence attorney who writes a blog on First Amendment issues, said the exemption cited suggests Kensinger is “involved at a level that is very integral in the policymaking process.”

Another exemption cited covers personnel records and employment applications.

“What I would infer is that Kensinger has some sort of sway over governor appointments, right? I mean that’s the only conclusion I can draw,” Kautsch said. “That would imply to me that he has an inordinate amount of sway for a non-staff person.”

The governor’s office also cited an exemption that covers “correspondence between a public agency and a private individual.” Both lawyers say this exemption is too broad to hypothesize about which records were withheld.

“It’s broad enough to encompass virtually all communications with private citizens,” Vix said.

Kensinger also received a private email sent by Brownback’s budget director in late December regarding the state’s budget, which The Eagle obtained through a source outside the governor’s office. That email likely falls outside the bounds of the state’s open records law, according to a recent opinion by Attorney General Derek Schmidt that said private emails from state employees are exempt.

Democrats repeatedly have criticized the Brownback administration for its perceived deference to Kensinger, who works as a lobbyist for Kansas City Power & Light, tobacco giant Reynolds American and other organizations.

“There is no question in my mind that he is the de facto chief of staff and that he has a great deal of influence … over what the governor does and where the governor goes,” said Senate Minority Leader Anthony Hensley, a Topeka Democrat.

Brownback pushed back on this perception in an October interview.

“I don’t talk with him about policy much at all,” he said.

Obtaining the records to shed light on Kensinger’s influence was a slow process.

The Eagle requested all e-mail between the governor’s full office staff and Kensinger since his departure as chief of staff after the governor made the October statement about rarely speaking with Kensinger about policy.

The records request came shortly before the election, when Brownback faced tough questions about Kensinger’s role in the administration. Former senator Dick Kelsey, a Goddard Republican, announced at a news conference in October that he had been interviewed by the FBI as recently as August about Kensinger’s lobbying activities in Topeka.

The Brownback campaign repeatedly downplayed Kensinger’s role, saying he was an unofficial adviser. He was not on the campaign’s payroll. His sister, Tricia Kensinger Rice, received more than $17,000 from the campaign for fundraising services.

Even though KORA requires that an agency respond to an open records request within three days, the governor’s office did not give The Eagle a cost estimate for the records — more than $1,200 — until the week that Brownback was inaugurated for a second term in January.

The Eagle narrowed its request to cover a shorter time period — December 2013 through November 2014 — and to focus on top administration officials. It submitted the amended request in February.

The governor’s office gave The Eagle a cost estimate of $175 in late March, which the newspaper paid immediately. The office did not release the records until May after The Eagle’s attorney sent a letter questioning the delay.

The public records obtained by The Eagle include e-mails where Brownback is on a private e-mail address while his staff used their official government accounts. The governor’s office did not turn over any e-mails between Brownback and Kensinger where there was not at least one other recipient on an official government account.

This story was originally published May 20, 2015 at 9:51 PM with the headline "Gov. Sam Brownback and aides still consult with ex-staffer, now a lobbyist, records show."