Legislation requiring local governments to make audio recordings of executive sessions, for later judicial review. My testimony for Kansas HB 2525, authored by Rep. Bill Otto (R-LeRoy).

Hats off to Kansas Rep. Bill Otto, a Republican from LeRoy, Kansas.  For years, Otto has been working to enact legislation that would cause local cities, counties, and schools to make an audio recording executive sessions — these are meetings that are closed to the public.  In years past, this bill has been referred to the House Local Government Committee, a committee whose members are often biased towards the concerns of local politicians, rather than the concerns of the citizens of a particular local government entity.

During the 2009-2010 session, Rep. Otto’s bill is called HB 2525.  And this year, Speaker Mike O’Neal referred HB 2525 to the House Judiciary Committee, a committee that, in the opinion of myself and others, will more objectively consider Otto’s bill.

The Kansas Open Meetings Act (KOMA) clearly requires open meetings for virtually all topics, when the meetings involve a majority of a local government.  But KOMA is a tough law to enforce, because it requires a large amount of self-policing, and when rare allegations are made, it’s often one city councilman versus all the rest.  I’ve seen this first-hand at Johnson County Community College, which openly violates the law through the practice of distributing budget information during closed meetings that involve the “job performance evaluation” of the president, and when the president is rated on “fiscal management.”  I served as one of seven at-large trustees at JCCC from 2005-2009.  You can go to my Web site to learn more about the culture of corruption under former President Charles Carlsen and current President Terry Calaway.

For any bill, there are three general steps:  the introduction of the bill, the hearing of the bill, and the working of the bill (when a committee “works a bill,” that’s when the committee votes on it).  Yesterday, Wednesday, February 10, 2010, the House Judiciary Committee held a hearing for HB 2525.  Proponents and opponents had the opportunity to submit verbal and/or written testimony, in order to try to persuade committee members toward their points of view.

One person who spoke in favor of HB 2525 was Doug Anstaett, president of the Kansas Press Association.  I also spoke in favor of the bill.  The Kansas Association of Counties (county governments use tax dollars to pay membership fees) and the League of Kansas Municipalities (cities pay into this one) argued against the bill.

This bill does not solve everything, and it’s by no means impossible to circumvent — local officials can begin and end recording at any time.  But for two reasons, I do think this is a significant step in the right direction, in terms of making government more open to the taxpayers: 1) as one proponent said, people generally act differently when they know they’re being recorded, and this will encourage good behavior among local politicians and administrators; and 2) for the first time, there will be something other the word of one or two people that a judge can examine, when there is an allegation of a violation of KOMA.

Click here to read the text (PDF) of House Bill 2525.

My written testimony follows, regarding my own observations at JCCC of KOMA violations and other legal troubles, after the fold:

Benjamin Hodge

Overland Park, KS

Kansas Representative, 2006-2008

Johnson County Community College Trustee, 2005-2009

Proponent, HB 2525

Testimony to Judiciary Committee

February 10, 2010

Chairman Kinzer, members of the committee, thank you for the opportunity to address you today.  I am here today for a few reasons.  For one, I want government to be as open as possible.  In particular, I want the discussion of budgets – spending the taxpayers’ money – to be done in a manner that puts the taxpayers first, and does not put the protection of government first.  I have served in local government, and I have seen first-hand the good and the bad in local government.  I don’t think some of you realize just how much fraud and corruption there is in local government and in Kansas schools, and I’m here to challenge the conventional wisdom.

I’m also here today because my testimony relates directly to three other, very important issues that you are dealing with during the 2010 session.  These three issues are education, the overall state budget (and whether tax increases are necessary), and the judicial branch of government (and whether judges are accountable and qualified).

If there are only two things you take away from my testimony, they’re these:

  • One: In Johnson County, there effectively is no open meetings law because the district attorney refuses to enforce the law. In Johnson County – a county with a fifth of the state’s population, and where local governments spend billions of dollars – local politicians are free to discuss budgets during executive sessions, and also through serial meetings.
  • Two: While the current open meetings law is good, I do believe that you need to improve the law. Most importantly, it needs to be easier to enforce – namely, I ask you to give local officials the funding and the tools to take KOMA violations directly to court. Right now, the district attorney is the only person who can enforce the law. Otherwise, it’s up to local politicians to spend their own money to hire a lawyer and take KOMA violations directly to court.

First, a brief background about me and about JCCC.  The background on JCCC is necessary so that you can better understand the ongoing culture of corruption.  As some of you know, I served in the Kansas House from 2006 to 2008.  I was a part of this judiciary committee.  I’ve also served in local office, at Johnson County Community College.  With 50,000 students a year, JCCC is the largest college in the state; larger than KU or K-State.  The budget is about $160 million a year.  There are seven at-large trustees at JCCC.  They’re elected to four-year terms, and the elections are alternated so that four trustees are elected at one election, and three at another election.  The spring of 2005, at age 25, I received first place out of four, in an election where the top three vote-getters won election.  I beat incumbent Trustee Nelson Mann, a prominent Kansas City attorney.

I was later told by Trustee Lynn Mitchelson that if I had not replaced Nelson Mann and if Nelson Mann were still there, that it was likely that former college President Charles Carlsen would not have voluntarily resigned.  In 2006, it became known that one woman accused President Carlsen of sexual harassment.  Carlsen denied it, and we believed him, at first.  But soon, it became four women that were accusing Carlsen of sexual harassment.  The only reason we know any of this is because of a student — the editor of the student newspaper – who did his own investigations.  Right after it was known that it was not one woman but instead four women who were accusing Carlsen of sexual harassment, Carlsen immediately resigned.

Later, the board found out that one of the final acts of the Carlsen administration was an attempted cover-up.  I mentioned the student editor – he also worked part-time in the library.  After Carlsen had resigned, trustees learned that two people — Carlsen’s top vice president and college attorney Mark Ferguson – approached the student editor while he was working in the library, and pulled him aside to “talk” to him about the investigation the sexual harassment accusations.  This was clearly an attempt to intimidate the student, it was clearly unprofessional, and, again, the only reason we know this is because the student editor had the courage to file an ethics complaint against attorney Mark Ferguson and told us about this during an executive session.

If you’re not familiar with Mark Ferguson – he is a law partner of Larry Gates, the Democratic Party Chairman, and college trustees refuse to perform a competitive bid for legal services.  Ferguson replaced Dan Biles – now Supreme Court Justice Dan Biles.  For the sake of Kansas, I sincerely hope that Dan Biles is a better lawyer than Mark Ferguson.  In 40 years, the college has never performed a competitive bid for legal services, and somehow, the contract has ended up in the hands of Larry Gates.  Ferguson also has the legal contract for the K-12 state school board.

Ferguson is both unethical and also not all that good of a lawyer.  He played a role in at least two attempts to cover up those sexual harassment allegations, he’s lied to the public, he has actively encouraged trustees to violate their own code of conduct, he has encouraged current college president Terry Calaway to violate internal college policies for ethics complaints, he’s encouraged Calaway to abuse the intra-college communication systems in order to mislead employees, he’s violated the Kansas Open Records Act, and he tried, unsuccessfully, to cover up the violation of KOMA, the open meetings act.  My favorite Mark Ferguson story is this, from another former student reporter:  Ferguson once told him, I’m not going to grant your open records request, because I know you’re going to write about the information. Again, Ferguson told the student that because the student was going to report the information, that Ferguson would not grant the KORA request.

Now, to my experiences with KOMA violations at JCCC:  In late 2008, I wrote a letter to the editor at The Kansas City Star, about the possibility of tax increases at JCCC.  That frustrated four other trustees, who then agreed to the contents of their own letter to editor, regarding both my letter and also their “take” on the likelihood of tax increases.  That was four out of seven trustees, a majority – and I asked our college attorney whether that violated the serial meetings clause in KOMA.  After repeated back and forths, whereby Ferguson tried to delay, he finally did answer through Email:  yes, it violated the letter of the law, but not the spirit of the law.  He later told me in person, I avoided answering your question by Email because I didn’t want to put it in writing. I decided not to make an issue of it.  But, remember, our own attorney had said in late 2008 that, yes, there had been a violation of KOMA, according to the letter of the law.

In early 2009, trustees performed a semi-annual job performance evaluation of President Terry Calaway.  We went legally into executive session.  Near the end of the executive session, Calaway handed out a 64-item typed list of possible budget cuts.  Calaway then verbally instructed trustees not to share the list. These 64 items were not part of a larger document; it was one document that was just a few pages long, and that existed all by itself.  Only four items identified actual employees who faced possible job losses – two by name, and two by title.  But 60 of the items did not directly reference any one person.  I’ll take a moment to now to encourage you to clarify this in KOMA – that when an identifiable government employee faces a job loss due to budget cuts, and not because of job performance, that the budget item should made public.

So, again, that 64-item budget list was shared during a closed meeting.  And I didn’t think anything of it, at the time.  But a week later, after being asked by Star reporter Jim Sullinger for general budget information, I volunteered to him, Well, I have some budget information, but it was shared during a closed meeting.  I basically was challenging him, I know I could give it to you, but you need to talk me into it. He immediately replied, Now, wait a minute, budget information isn’t supposed to be shared during an executive session.  I then realized, Oh, you know what, you’re right, and I shared the list with Sullinger.

Sullinger reported it online – online only.  It would have ended there, in a normal world.  But this is not a normal world; this is Johnson County.  College leaders were infuriated that I did not ask for their permission to share the budget information with the public.  These people genuinely come from the point of view that tax dollars are their money – that government comes first, and taxpayers come second.  They hold the un-American view that citizens are a threat to government!  President Calaway, Board Chair Shirley Brown-VanArsdale, and Board Vice-Chair Lynn Mitchelson were angry at me, and so they began to criticize me for sharing the list.  Once they realized that I had a legitimate reason for sharing the list – you know, that they broke the law – they then moved to denial and cover-up.  They lied and said that I had specifically requested the list; not only was this false, but it’s legally irrelevant – even if I had asked for it, it still would have violated KOMA.

With attorney Mark Ferguson’s help, college leaders spent thousands of dollars and violated many college policies trying to both cover-up this KOMA violation and damage my reputation.  And all of this because of a relatively minor – and common across the state – legal violation.

I chose to fight back, and I was able to win the political battle with the help of several legislators and press leaders in Topeka and Kansas City.  Something that stuck with me was a comment to me by an employee at the Kansas Press Association – in terms of open government, I was told that the KPA typically does not have common problems with either conservative Republicans or Democrats, but instead with elected officials who are self-described “Johnson County Republican moderates.”

So, again, we won the political battle, but, at least for now, the citizens of Johnson County lost the legal battle.  Johnson County District Attorney Steve Howe made the following conclusions:

  1. First, that serial meetings involving a majority of elected officials are acceptable, provided that they do not clearly state something similar to, “OK, and this is how we’re later going to take binding action.”  I find it difficult to believe that this interpretation was the original intent of the law – that any discussion can take place, as long as “binding action” is discussed only later.

From the Legislature’s Web site, KSA 75-4318 (f), concerning serial meetings, emphasis mine:

“(f)   Except as provided by section 22 of article 2 of the constitution of the state of Kansas, meetings in a series shall be open if they collectively involve a majority of the membership of the body or agency, share a common topic of discussion concerning the business or affairs of the body or agency, and are intended by any or all of the participants to reach agreement on a matter that would require binding action to be taken by the body or agency.”

  1. But most disturbing was Howe’s decision, here:  that because the budget information was handed out during a job performance evaluation, and that because JCCC trustees evaluated President Calaway on something similar to “fiscal management,” that large, detailed budget lists could then be distributed during closed meetings.

Again – virtually everybody of consequence in Kansas City disagreed with DA Steve Howe’s decision – Howe’s decision was so bad that The Kansas City Star, KMBC/ABC channel 9, the Kansas Press Association, and the Kansas Association of Broadcasters all editorialized against the decision, and in favor my efforts.

Also, one other thing Calaway tried to say, while trying to justify his behavior – and this was public, typed on the JCCC Web site – was that there was no “discussion” of the information: that the budget information was “merely” distributed, along with instructions not to later share (e.g., discuss) the information with the public, and that all of this was appropriate because there was not verbal discussion about the information among the trustees and during that one executive session.  I encourage you to consider whether the Legislature should clarify this, for other administrators who are as openly unethical as JCCC’s Terry Calaway.

Again, I appreciate the time to address your committee.  Thank you for your time.  I will be happy to stand for questions.


Connect with Benjamin Hodge at FacebookTwitterLinkedInThe Kansas Progress, and LibertyLinked. Hodge is President of the State and Local Reform Group of Kansas.  He served as one of seven at-large trustees at Johnson County Community College from 2005-’09, a member of the Kansas House from 2007-’08, a delegate to the Kansas Republican Party from 2009-’10, and was founder of the Overland Park Republican Party in 2011.  His public policy record is recognized by Americans for Prosperity, the Kansas Association of Broadcasters, the Kansas Press Association, the Kansas Sunshine Coalition for Open Government, the NRAKansans for Life, and the Foundation for Individual Rights in Education (FIRE).


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