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KCC asks for attorney general’s help in open-meetings case

  • The Wichita Eagle
  • Published Tuesday, June 25, 2013, at 8:59 p.m.
  • Updated Wednesday, June 26, 2013, at 8:12 a.m.

The Kansas Corporation Commission voted Tuesday to ask the attorney general’s office to represent the commission and the individual commissioners in their defense against a prosecutor’s lawsuit that claims they violated the state’s open-meetings law during a water rate case.

The vote was 2-0, with Commissioner Thomas Wright absent.

The commissioners also voted to ask the attorney general to assess KCC practices related to open meetings, according to a brief statement issued by the agency’s spokesman.

The notice of the special meeting, which was sent to media and other interested parties Tuesday morning, said the meeting would be conducted at the KCC office in Topeka “with videoconferencing link to” the commission’s Conservation Division office in Wichita.

However, the Wichita videoconference feed was shut down on instructions from the KCC’s Topeka staff, shortly after an Eagle reporter showed up to watch the proceedings.

Jesse Borjon, the spokesman for the commission, said the videoconference link was shut down based on language in the notice that said “open meetings are not transcribed, recorded or broadcast.”

The commission is facing a lawsuit filed by Shawnee County District Attorney Chad Taylor, who alleges that commissioners violated the state’s open-meetings law by using a process called “pink sheeting” to make decisions.

Under that process, routinely used by the commission, a staff attorney circulates a proposed order individually to commissioners and obtains their signatures indicating approval instead of holding a public vote. The practice draws its name from the color of the slips of paper used to obtain the signatures.

The initial complaint against the KCC was filed by the Citizens’ Utility Ratepayer Board, a state agency that represents residential and small-business utility customers.

David Springe, chief consumer counsel for CURB, said he wasn’t sure whether the attorney general’s office could represent the KCC in the case because state law names the attorney general, along with the state’s district or county attorneys, as the potential prosecuting authorities on complaints of open-meetings violations.

CURB filed its initial complaint with both the Shawnee County district attorney and the attorney general’s office.

Taylor said it’s “kind of an efficiency deal,” for his office to prosecute and the attorney general to defend state officials accused of violating the open-meetings law. He said the process will be similar to an investigation last year into whether meetings between Gov. Sam Brownback and groups of Republican legislators violated the law.

In that case, Taylor’s office investigated the complaint while lawyers from Attorney General Derek Schmidt’s office represented lawmakers who requested legal assistance. That freed the state from having to spend money on outside counsel, which it would have had to do if Schmidt’s office participated in the investigation.

Taylor’s investigators found no substantial violations by individual legislators, but recommended clearer policies and additional training on complying with the law.

Taylor said in the KCC case, he’s seeking an injunction to undo a water rate increase the KCC approved for the Howison Heights Rural Water District Inc., a developer-owned water company serving 62 customers in a neighborhood near Salina.

The financially troubled water company is currently faced with efforts by banks to foreclose on its assets. The rate increase approved by the commission more than doubles the cost of water for the residents.

The KCC generally handles mostly natural gas and electric utilities, but a handful of small water companies fall under the commission’s jurisdiction.

Once the injunction is decided, Taylor said he could seek a civil fine of $500 for open-meetings violations. If a violation is determined to be “malicious or wanton,” prosecutors can bring a proceeding known as “ouster” to remove an official from office, Taylor said.

However, he said that would require “pretty extreme” wrongdoing and an ouster proceeding is unlikely in the KCC case, “based on what we know right now.”

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

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