Kansas House rejects amendment to address private e-mail loophole

Voting mostly along party lines, the state House rejected an amendment that would have made private e-mails by public officials about official state business open to public scrutiny.

Rep. Jim Ward, D-Wichita, offered the amendment Monday after The Eagle reported last week that Gov. Sam Brownback’s budget director had e-mailed a draft of the state budget to two lobbyists and several top administration staffers from a private e-mail account on a private computer. The communication is exempt from Kansas Open Records Act because of a loophole.

“It’s come to our attention recently that private business is being done on private e-mail accounts. What this (amendment) does is say we don’t care what e-mail account you use … if you’re doing public business that’s subject to KORA,” Ward said. “It is a transparency issue. It is fundamental to a democracy that people know how decisions are made.”

Ward’s proposal, which would have made private communications by public officials open records when a substantial public interest can be shown, failed by a vote of 86-30.

Nine House members were absent or did not vote. Only four Republicans – Rep. Don Schroeder, R-Hesston; Rep. Tom Sloan, R-Lawrence; Rep. Stephanie Clayton, R-Overland Park; and Rep. Larry Campbell, R-Olathe – voted in support of the measure. No Democrats opposed the bill.

Ward tried to attach his amendment to a bill that extended exceptions to the open records act. The bill itself passed by voice vote.

Twenty-six states consider private e-mails by public officials on official business to be public records. Asked Friday if Kansas should follow suit, Brownback, who said he primarily uses a private cellphone, resisted the idea.

“You got to then figure out and parse is this contacting my wife about us going to Kansas Day public or private business and I – that’s just – I would have questions about doing that,” he said.

His office would not comment about Ward’s proposal Monday.

Rep. John Carmichael, D-Wichita, called the use of private e-mail disturbing.

“The public’s business ought to be done in the sunshine,” he said.

Rep. Scott Schwab, R-Olathe, asked Ward if his amendment would apply to members of the House and Senate. Ward said that yes, if substantial interest could be shown, such as a large number of lawmakers discussing the budget on private e-mails, then it would apply.

Schwab said he understood Ward’s intent, but without a clear line drawn about when the policy would apply he was unwilling to subject his own e-mail to such scrutiny.

“If someone wants to use this as political retribution to me because I sent an e-mail to the Appropriations Committee saying, hey, I need to know how this is going to affect my school district and perhaps I’m more willing if you all would include this … I’m not willing to subject my e-mail to that simply because I’m working with colleagues to try and form an education plan,” Schwab said.

Schwab said the Legislature could return to the question of whether a lobbyist should have been included in the budget planning process at a future date. He was referring to the inclusion of David Kensinger and Mark Dugan, two former Brownback aides, on Sullivan’s budget e-mail. Both are lobbyists now.

Brownback said Friday that his administration consulted broadly on the budget and that Kensinger and Dugan had offered frank advice.

Rep. John Barker, R-Abilene, chair of the House Judiciary Committee, which passed out the bill, chastised Ward for not introducing the amendment during the committee process or introducing it as a bill on its own.

“If it’s such a good idea, put it in a bill and let’s debate in committee … and if some point in time it comes out of committee, we’ll vote on it,” Barker said.

Ward pointed out that the Judiciary Committee worked on the bill before Sullivan’s e-mail had been made public.

Later Mondy afternoon, he introduced the legislation as its own bill.

Senate Democrats plan to introduce a similar bill this week.

This story was originally published February 2, 2015 at 12:53 PM with the headline "Kansas House rejects amendment to address private e-mail loophole."