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DA warns Kansas governor, lawmakers to keep records as he investigates meetings at residence
TOPEKA, Kan. (AP) ' A local prosecutor is warning Kansas legislators and Gov. Sam Brownback to preserve records and electronic files about gatherings at his official residence as "potentially relevant evidence" in an investigation into complaints that the sessions violated the state's open meetings law.
Shawnee County District Attorney Chad Taylor sent a letter to all 40 state senators and all 125 House members, directing them to preserve not only their records, electronic files and "tangible items," but the same materials for their staffs. Taylor said Thursday night that he also sent it to Brownback's office, his secretary of administration and the administration's information technology director.
He expected all of the letters to be distributed Friday, ahead of an afternoon news conference he scheduled to discuss his investigation. Brownback planned a news conference on other topics but could face questions about the investigation.
The Associated Press obtained a copy of the letter Thursday evening from a legislative source who did not want to be identified because copies of the letter, while delivered to the Statehouse, had not been distributed to all lawmakers.
Brownback, a Republican, invited GOP lawmakers from 13 legislative committees to seven dinners in January, without formally notifying the public. The governor's staff has said the events did not violate the Kansas Open Meetings Act because they were social gatherings and Brownback admonished legislators to avoid discussions that would violate the law. The Topeka Capital-Journal, which has reported extensively about the meetings, asked Taylor on Tuesday to investigate.
Taylor, a Democrat, said in his letter that legislators should "err on the side of preservation" when it comes to records. He also noted that electronic files include emails, voice mails and instant messages.
"Your efforts to identify and preserve relevant information must begin immediately, without exception or limitation," Taylor wrote. "This not only includes refraining from any acts that may alter or destroy relevant information, but also includes intervening to prevent loss due to routine operations."
Senate Majority Leader Jay Emler, a Lindsborg Republican, who was invited to two of the meetings, said he saw them as similar to other gatherings past governors have had with legislators at Cedar Crest, the governor's residence, though he acknowledged not recalling whether previous ones involved specific committees.
"Certainly, I saw no reason not to go. It's a standard thing to invite legislators to Cedar Crest," Emler, an attorney, said during a news conference. "We didn't discuss any particular bills."
The Open Meetings Act generally prohibits a voting majority of a legislative body from discussing government business without giving the public notice or access to the meetings. Alleged violations are a civil matter, not a criminal one. A person found to have broken the law is subject to fines of up to $500 per incident.
Brownback spokeswoman Sherriene Jones-Sontag noted that state law already requires the governor's office to retain its records. "We will fully cooperate with this civil inquiry and remain confident that all actions were well within the law," she said.
In a statement earlier this week, Caleb Stegall, the governor's chief counsel, said the governor himself couldn't violate the meetings law because he's an individual, not a government body. But, Stegall said, the governor and his staff warned legislators that they couldn't conduct committee discussions while at the governor's residence.
Stegall also said that once committee members were warned, the dinners became informational sessions, which are permitted. He cited a 2009 opinion from then-Attorney General Steve Six.
Emler said legislators heard remarks from Brownback that they'd heard before in other settings, and he said a top Brownback aide was present to prevent discussions from straying into questionable territory.
In a letter Tuesday to Taylor, the Capital-Journal's attorney, Mike Merriam, said the newspaper believes the meetings violated the law and called explanations as to why they did not "hair-splitting excuses."
Publisher Gregg Ireland said the newspaper's reporting has been vindicated because Taylor sees a need to investigate.
"We're glad to see it's being fully investigated," he said. "The people's business is not to be done under the cloak of darkness. It needs to be transparent."
The Open Meetings Act allows the state's attorney general or a county prosecutor to subpoena witnesses and documents and compel witnesses to answer questions under oath. In an interview, Taylor likened his letter to state officials to those sent out by attorneys in civil cases telling parties to preserve potential evidence.
Kansas governor: https://governor.ks.gov/
Kansas Legislature: http://www.kslegislature.org
Shawnee County, Kan., district attorney: http://www.snco.us/da/