Does Secretary of State Kris Kobach have a conflict of interest by acting as an attorney in a lawsuit involving a Kansas company?
Legally, the answer is probably not.
The Eagle reported last week that Kobach is representing Utah-based Modular Evolution in a patent infringement lawsuit filed by Wichita-based B&T Industries over a bipod used to stabilize rifles. Since the secretary of state oversees business filings in Kansas – which include B&T Industries – some readers wondered whether Kobach has a conflict in fighting the company in court.
Rep. John Carmichael, a Wichita Democrat who is among Kobach’s most frequent critics, doesn’t think so.
"The secretary of state does have the responsibility to administer business filings. However, in my opinion it is not a conflict of interest as a lawyer for Mr. Kobach to perform those ministerial tasks" while also serving as an attorney in the lawsuit, Carmichael said.
Kobach, who is running for governor, is representing Modular Evolution in his capacity as a private attorney.
Requests for comment from Kobach’s spokeswoman last week and on Monday weren’t answered.
Hana Callaghan, director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University in California, said the center does not comment on specific cases. But as a matter of general ethical principles, government officials have a duty to preserve trust in government, which means a duty to avoid even the appearance of impropriety, she said.
“Privately suing an entity you are sworn to serve may give rise to an appearance of impropriety and bias,” Callaghan said.
The Governmental Ethics Commission has found that, generally, state officers and employees are not prohibited from work outside of their state employment. Conflicts may occur, however, if the outside work affects state employment.
Kobach’s situation – opposing a Kansas company in court whose business filings he oversees – doesn’t appear to be addressed specifically in state law. But the law does speak to what happens when a public official is involved with a company that he or she helps regulate.
According to K.S.A 46-286, no state officer or employee "shall participate directly in the licensure, inspection or administration or enforcement of any regulation of or in any contract with any outside organization with which the officer or employee holds a position."
In other words, you can’t regulate a business or organization that you’re a part of.
Kobach is also prohibited from using any confidential information he gains as secretary of state for his own personal benefit, under another state law.
“You can’t utilize confidential information as a state employee” for your economic benefit, said Mark Skoglund, director of the Ethics Commission.
Carmichael says the larger issue is that Kobach’s side employment – whether as an attorney or writing paid columns for Breitbart – shortchanges Kansans expecting a full-time secretary of state.
"That is the ethical dilemma he places himself in," Carmichael said.
Kobach has been pressed about his outside legal practice before, perhaps most prominently during the 2014 election when he debated Democratic challenger Jean Schodorf. In one debate, he said his practice takes about five hours a week.
He said his income from the practice, which he has used in the past to act as an attorney in high-profile immigration law cases, ranged from $30,000 to $100,000 a year. His salary as secretary of state is $86,000.
"Frankly, when you have, now soon to be, a family of seven it’s helpful. Many Kansans do this, too. To make sure you have a second job so you can provide for your family," Kobach said at the time.