Gov. Sam Brownback’s budget director used a private e-mail account to share a working version of the governor’s proposed budget with two lobbyists three weeks before it was unveiled to lawmakers.
Budget director Shawn Sullivan sent a draft of the proposal from his Yahoo account two days before Christmas to the private e-mails of several top administration officials and to the governor’s former chief of staff, David Kensinger, and his former campaign manager, Mark Dugan, both of whom are lobbyists.
The e-mail was obtained by The Eagle this week from a source outside the governor’s office.
In it, Sullivan lays out plans to increase taxes on cigarettes, take $350 million from the highway fund over 2 1/2 years and change the way the state funds schools in an effort to rein in costs.
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Asked why two lobbyists had input into the budget process, Eileen Hawley, the governor’s spokeswoman, said, “I think you’re digging to find things that aren’t there … we sought the counsel of a lot of people in that process.”
Senate Minority Leader Anthony Hensley, D-Topeka, said it was highly inappropriate for lobbyists to be given information on the budget before lawmakers.
“They’re not part of the governor’s staff,” he said.
Kensinger, who left the governor’s office in April 2012, works as a lobbyist for the Club for Growth, Kansas City Power & Light and other business and political entities. Democratic lawmakers and some moderates say he continues to wield influence in the administration.
Hensley referred to him as a “shadow chief of staff.” Kensinger did not respond to a request for comment.
The governor told The Eagle in October that he rarely speaks to Kensinger about policy, but Sullivan’s e-mail thanks the recipients for “helping us work through this budget process.”
Last April, the Topeka Capital-Journal reported that Kensinger was the subject of a federal probe for influence peddling at the Capitol.
Dugan also has forged a career as a lobbyist since running the governor’s re-election campaign. He would not answer questions Tuesday but e-mailed a statement later: “Governor Brownback seeks input from a wide variety of sources and I’m honored to be one of them.”
Rep. Jim Ward, D-Wichita, said the inclusion of lobbyists in budget talks shows the Brownback administration doesn’t “seem to know the lines between government public action and private industry.”
A ‘loophole’ in state open records act
The governor was not included on Sullivan’s budget e-mail. Sullivan said that’s because they spoke about the budget daily during November and December and Brownback did not need the same update.
Other recipients of the e-mail include Hawley; Lt. Gov. Jeff Colyer; Landon Fulmer, who then was the governor’s chief of staff; Jon Hummel, who replaced Fulmer; Kenny Wilk, chair of the Kansas Board of Regents; Tim Shallenburger, the governor’s legislative liaison; Chuck Knapp, who was appointed Colyer’s chief of staff in December; Kim Borchers, the governor’s appointments secretary; and Kent Glasscock, president of Kansas State University’s Institute for Commercialization.
With the exception of Glasscock, who received the e-mail on his KSU e-mail address, everyone received it on a non-government e-mail address. Although it was government business, Borchers received it on her official Brownback campaign e-mail address.
Sullivan said he accidentally typed in Borchers’ campaign address and that he only sent it to private e-mail addresses because many staff members were at home for the holidays.
E-mails sent to and from private e-mail addresses on private computers are not public documents and not subject to the Kansas Open Records Act.
“It’s definitely a loophole,” said Mike Merriam, a retired Washburn University School of Law professor who serves as general counsel for the Kansas Press Association. “So government officials are able to communicate with each other even on official business as long as they do it at home, and that’s plainly not the intent of the law in my opinion.”
Sullivan said use of his personal e-mail account was not intended as a way to skirt the open records act.
“Why it was done on personal e-mail was because it was done while I was at home on Christmas,” he said.
Hensley said the private communication was an attempt to avoid public scrutiny. “I would assume that this is par for the course, that this is a method they’ve utilized, I’d assume, for a number of months or not years.”
Hawley and Sullivan would not say directly how often the governor’s staff used private e-mails for public business.
“There’s one e-mail that was sent over a holiday to personal e-mail accounts. I would not say that’s indicative of any trend,” Hawley said.
Personal e-mail addresses are sometimes used to contact members of the government staff during off hours, she said, adding that if she’s at home her personal e-mail goes straight to her phone.
Sen. Jacob LaTurner, R-Pittsburg, said he was concerned about the use of private e-mails.
“If the goal is to hide that from the public, then that’s not right,” said LaTurner, an advocate for government transparency who plans to introduce a bill later this week that would prohibit government agencies from charging exorbitant fees for open records requests.
Ward said the problem with using private e-mails is that “no one can track decision-making.”
Twenty-six states consider e-mails by public officials about public business on private accounts to be subject to open records laws, according to the Reporters Committee for Freedom of the Press. Florida Gov. Rick Scott currently faces a lawsuit that alleges he tried to flout that state’s open record laws through private e-mails.
For his part, Sullivan made light of the e-mail, joking on social media that he would only communicate via Twitter in the future.
Insight into budget challenge
Sullivan’s e-mail gives some insight into the political challenges facing the administration in passing a fix for a $648 million budget deficit for the fiscal year that begins in July.
While Kensinger and Dugan got to see the budget before the majority of lawmakers, the e-mail discusses talks with some top Republican lawmakers.
“The reaction to this from the House budget and tax leadership has been more positive than from the Senate budget leadership and Sen. Bruce,” Sullivan writes in the e-mail.
Senate Majority Leader Terry Bruce, R-Hutchinson, has been outspoken in his resistance to raising taxes, which is part of the governor’s budget fix. Sullivan would not discuss whether the reference to Senate budget leadership referred to Sen. Ty Masterson, R-Andover, who chairs the Ways and Means Committee.
Bruce laughed when shown the e-mail. “I’ve never shied away from the fact that I think it’s an ugly budget,” he said.
In the e-mail, Sullivan uses the phrase “house of cards” when discussing proposed policy changes to KPERS, the state’s public pensions system. Asked what he meant, he said he was referring to the system’s high cost as part of the larger budget.
“While there is plenty in here for people not to like, we have a proposal that attacks the cost drivers of K-12, KPERS and Medicaid,” he says later in the e-mail.
Sullivan’s e-mail was sent about two months after The Eagle filed an open records request in October for e-mail correspondence and phone communication between Kensinger and the governor’s office since April 2012.
Hawley said the use of personal e-mails had no connection to the records request.
The governor’s office gave The Eagle an initial reply that it was processing the request but did not provide The Eagle with a cost estimate of $1,235 until Jan. 13, the day after Brownback was sworn in for a second term.