Records show that the state’s budget director had access to and used his state e-mail during a holiday break last year – despite claiming in January that being out of the office necessitated his use of private e-mail.
The Eagle discovered in January that Gov. Sam Brownback’s budget director, Shawn Sullivan, used his private Yahoo account to e-mail a draft of the governor’s budget and tax plan to two lobbyists with ties to Brownback two days before Christmas.
Asked in January about the use of private e-mail, Sullivan replied, “why it was done on personal e-mail was because it was done while I was at home on Christmas.”
However, records obtained from the governor’s office last week through an open records request show that Sullivan had access to his official state e-mail during that period. He also sent a few e-mails on it for mostly mundane purposes. He used his state e-mail the same day he e-mailed lobbyists. The records were requested in mid February but were not released until last week.
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Rep. Jim Ward, D-Wichita, said he knew back in January that Sullivan’s “lame excuse” wouldn’t “hold water” and called the disclosure of these other e-mails “proof that the Brownback administration is acting in secret in the backrooms and wants no public scrutiny of their activities.”
“Their explanations never (hold up). When you hear them, they’re incredulous. You’re like, ‘Really, that’s the best you can come up with?’ ” Ward said. “When Shawn said that back in January you knew. I was using my state e-mail account during the Christmas holiday.”
Using his state e-mail address Sullivan e-mailed his executive assistant, Sandy Russell, the morning of Dec. 23 to ask if the office had any thank you notes. Russell wrote back that it did not, quipping “I guess we’ve never had a reason to thank anyone for wanting more money!”
Later that same day Sullivan used his state e-mail to send a photo of himself to KSN reporter Ashley Arnold who needed it for a story.
That evening Sullivan e-mailed the Kansas Highway Patrol, which administers security at the statehouse, to express his concern that Division of Budget staff members would lose access to the Capitol on Jan. 1. Sullivan wanted to make sure Budget staffers retained the same security clearance as the rest of the governor’s staff.
But about an hour and half after Sullivan sent his e-mail to the Highway Patrol from his official state account he sent an e-mail to two lobbyists, David Kensinger and Mark Dugan, informing them that the governor planned to sweep money from the state’s highway fund, enact a tax hike on cigarettes and slow down future income tax cuts to help fill the state’s budget hole.
Kensinger, who previously served as the governor’s chief of staff, began lobbying for tobacco giant Reynolds American against the proposed tobacco tax about a month later. Dugan, the governor’s former campaign manager, was also active in lobbying on tax policy issues this past session for the Kansas Club for Growth, a group that advocates for limited government and lower taxes.
Sullivan’s use of a private e-mail address and private computer likely put the exchanges outside the state’s open records act – a loophole Attorney General Derek Schmidt affirmed in an opinion – meaning that there would be no official record despite the fact that the e-mails concerned public business.
The e-mail was sent to the personal or campaign e-mail addresses of Lt. Gov. Jeff Colyer and several top administration staffers.
The Kansas Press Association also expressed concern about the fact that Sullivan sent more substantive e-mails about policy on a private account on the same day he sent more mundane e-mails on his state account.
“I mean if he had a choice of sending it on either one, and he sent it on his private e-mail, it looks as if he’s trying to avoid public scrutiny,” said Rich Gannon, the Press Association’s director of government affairs.
On Friday, Eileen Hawley, the governor’s spokeswoman, who responded on Sullivan’s behalf, said in an e-mail that the reason Sullivan used a private e-mail to send the budget information had to do with the piece of technology he was using, explaining that the shorter e-mails were sent on his work account using his phone.
“Mr. Sullivan frequently sends and responds to short messages using the work e-mail account on his phone when he is not in the office,” she said. “The e-mails you asked about were lengthy messages that included Excel spreadsheets, written when he was away from the office, and he was not able to send these more complex messages from his cell phone.”
Hawley also indicated that since the publication of The Eagle’s first story in January, Sullivan “now uses a work laptop to send any such messages through his official e-mail account when he is not in the office.”
Sullivan later argued in an e-mail that had his message about the budget been sent on his government account it would have been covered by an exemption in the Kansas Open Records Act, which protects policy drafts.
Rep. John Carmichael, D-Wichita, accused the Brownback administration of trying to work behind “an electronic closed door.”
Ward and Carmichael both said this highlights the need to close the loophole in the open records act. The Eagle’s coverage of the issue has prompted the Kansas Judicial Council – a 10-member board established by the Legislature – to look into the matter and draft a proposal to the Legislature for reforms next session.
Under the current version of that plan, Sullivan’s e-mail to the lobbyists would be a public record, according to Ward, who is serving on the Judicial Council’s panel.
The question of whether private e-mails from government officials should fall subject to open records acts is one being grappled with in other states and at the national level.
The Chicago Tribune sued Chicago Mayor Rahm Emanuel last month in an effort to force him to release e-mails and texts sent on his private Blackberry that concern government business.
Democratic presidential frontrunner Hillary Clinton has faced scrutiny over her exclusive use of private e-mail during her tenure as secretary of state. President Obama approved changes in the Federal Records Act in 2014 – after Clinton left his administration – that now require federal officials to forward private e-mails on official business to their government accounts.
The Eagle filed its open records request for Sullivan’s government e-mails during the holiday break in February, but the governor’s office did not produce the records until mid-October. The records were given to The Eagle at no charge.
The eight-month delay raises a question for transparency advocates about the timeliness of disclosure. The open records act requires that public agencies respond to requests within three days and if records can’t be provided in that time to provide an explanation.
“That’s really a stretch. That’s a long time,” the Press Association’s Gannon said about the delay. “I can’t believe it would take them that long to come up with this. Jeeze.”
The governor’s office did send The Eagle an initial e-mail confirming that it had received the request in February and that it would process the request. The governor’s office has previously argued that such responses meet the requirements of the act.
The Eagle’s attorney, Lyndon Vix, on the other hand, argues that this falls short.
“The Governor’s office continues to operate under the assumption that the Kansas Open Records Act contains no deadlines for compliance and that an agency can simply sit on a request indefinitely, making no effort to produce the records in a timely manner,” Vix said in an e-mail. “We believe that position is simply wrong.”
Ward, an attorney, said that the open records law provides public agencies with some flexibility about the time it takes to produce documents because some records are difficult to produce and others require scrutinizing to ensure that confidential information is not released.
“But under the Brownback administration that little exception has been abused,” Ward said. “It’s now being used as the reason to hope that you forget about the request or that the story dies down. And the delay is the norm, not the exception and that frustrates the purpose of the law, which is timely disclosure of public decisions so that the public can scrutinize their elected officials.”