Politics & Government

Records: Gov. Sam Brownback, aides still consult with ex-chief of staff, now a lobbyist

David Kensinger gives a presentation during the Kansas Republican Convention. Kensinger, now a lobbyist, has been consulted by Gov. Sam Brownback’s staff, records show.
David Kensinger gives a presentation during the Kansas Republican Convention. Kensinger, now a lobbyist, has been consulted by Gov. Sam Brownback’s staff, records show. File photo

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

Brownback’s political opponents have said – and the administration has disputed – that Kensinger has maintained an unusual level of influence in the governor’s office since leaving to become a lobbyist.

E-mails 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 Eagle received this month after an open records request.

When the governor’s office planned a trade mission to China last year, for example, it sought input from Kensinger.

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

Kensinger was apprised of the governor’s meetings and strategy sessions during the campaign 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 did not release an unknown number of e-mails based on 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 this e-mail: “Commerce wants to lock in these dates for travel to China. Obviously it’s a week after the election. … 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 the e-mail even though he had no official position in either the administration or the campaign.

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

Rep. John Carmichael, D-Wichita, said the apparent advisory role for a lobbyist is 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 e-mailed 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 e-mail.

Kensinger did not respond to numerous requests for an interview. The governor’s office sent a brief message about why Kensinger was included in discussions about policy and the governor’s schedule.

“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 e-mail.

Some records withheld

The records the governor’s office did not release may also be an indication of Kensinger’s influence.

Before the e-mails were released to The Eagle, the governor’s chief counsel reviewed them, making redactions and selecting e-mails to withhold. The governor’s office would not say how many records it withheld. It cited three exemptions to the state’s open records law.

One of those exemptions 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 e-mails include policy discussions with Kensinger.”

Max Kautsch, a Lawrence attorney who writes a blog on First Amendment issues, said the use of this exemption suggests Kensinger is “involved at a level that is very integral in the policy-making process.”

Kautsch said another exemption the administration cited, which covers “personnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment,” could be even more significant in terms of Kensinger’s influence.

“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. He’s chiming in and Brownback’s asking for his advice on who to appoint,” Kautsch said. “At least he’s being cc’d on who’s in the works as far as hire and fire. That would imply to me that he has an inordinate amount of sway for a nonstaff person.”

The governor’s office also used an exemption that covers “correspondence between a public agency and a private individual.” Both lawyers said this exemption is too broad to hypothesize about which records have been withheld. The e-mails could be about anything.

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

Kensinger also was one of the recipients of a private e-mail 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 e-mail 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 e-mails from state employees are exempt from the state’s open records law.

Democrats have repeatedly criticized the Brownback administration for its perceived deference to Kensinger, who now works as a lobbyist for Kansas City Power and 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, D-Topeka.

Brownback pushed back on this perception in an October interview. “I don’t talk with him about policy much at all,” he said.

Getting the records

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 Sen. 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 the Kansas Open Records Act requires that an agency act upon a 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 Eagle 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 in which Brownback uses 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.

Reach Bryan Lowry at 785-296-3006 or blowry@wichitaeagle.com. Follow him on Twitter: @BryanLowry3.

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