Kansas State Board of Education Attorney Mark Ferguson has taken exception to recent reporting by The Sentinel showing a potential violation of the Kansas Open Meetings Act.
During the Oct. 13, 2026 meeting, Board Member Debby Potter asked for clarification of the purpose of an executive session during the discussion of the day’s agenda at the beginning of the meeting.
Near the end of the meeting, Vice Chairman Danny Zeck moved to go into executive session, “to consult with an attorney which would be deemed privileged in attorney-client relationship in order to protect the privilege and the board’s communication with its attorney on legal matters.”
The KOMA law requires public bodies to disclose the justification for going into executive session (in this case, attorney-client privilege) AND the subject. The motion prepared for Zeck to read does not specify the specific subject to be discussed; a generic reference to ‘legal matters’ doesn’t inform the public as required.
In an email to board members on Oct. 15, obtained by The Sentinel, Ferguson said he did not agree that the board had violated KOMA.
“Both the statement of the subject and (emphasis in the original) the justification listed in subsection b for closing the meeting were given,” Ferguson wrote. “Making a reference to an item on the agenda earlier in the meeting is not a motion to go into executive session. It is the motion to go into executive session which requires the two-part announcement (subject/topic and justification). Both were given.”
Ferguson, however, ignored the fact that The Sentinel specifically noted that Zeck made a motion to go into executive session which would appear to be insufficient, while giving the full text of the motion in the email. Ferguson did not respond to our request that he identify the subject of the motion; his only reply was to demand the identity of our sources. We reminded Ferguson that journalists are not required to disclose sources.
Attorney Max Kautsch, who specializes in First Amendment and KOMA and the Kansas Open Records Act, or KORA, said the State Board’s motion is simply not sufficient.
“Under Kansas law, public bodies cannot make a motion to recess into executive session without writing down a ‘statement describing the subjects to be discussed during the closed or executive meeting,'” Kautsch said. “Merely restating the benefits of the attorney/client relationship does not describe what will be discussed. Moreover, that law was interpreted by Derek Schmidt’s Attorney General’s Office almost a decade ago to mean that the statement for recess ‘must be more than a generic or vague summary’ of what is to be discussed. But the motion here is not even a ‘summary’ of topics, let alone ‘more than’ that, as the law requires.”
Not the first attempt by Ferguson to intimidate
In November 2025, Ferguson presented State Board member Debbie Potter with a sheaf of papers on his firm’s letterhead.
“I received an envelope from Mr. Ferguson after the meeting was concluded and I was at the doorway leaving the conference room, when he presented me an envelope titled, ‘Gates Shields Debby Potter Hand Delivery.’ I asked him what it was, and when I saw the label, I asked him if I was being served. His response was it was whatever I thought it was,” Potter said at the time
The letter accused Potter of undermining the board among other issues, and was an implicit reprimand.
The Sentinel asked Ferguson to explain the letters and whether he was writing at the board’s behest. Rather than answer, Ferguson attempted to prevent the story from being published.
“You may have permission from Ms. Potter to publish the letters. However, any permission granted by Ms. Potter would be given in her individual capacity and not on behalf of the entire Board,” he wrote. “Therefore, attorney-client privilege is not waived. Further, you do not have my permission as attorney to the Board, and these are not documents which are subject to KORA or KOMA.
“This is an important point because I want to make it very clear that neither my client, nor I as their attorney, have an intent to waive the attorney client privilege. To my knowledge, all communications on this subject matter have been between lawyer and client.”
While it remains unclear if Ferguson was writing to Potter at the behest of the board, it is clear he billed the board for in depth (sic) legal and data base (sic) research regarding association and legal connectivity between KPI and The Sentinel. — information that is disclosed on the websites of both The Sentinel and Kansas Policy Institute.
Ferguson’s firm billed state taxpayers $11,766.82 on invoice 3481 in early December 2025, which includes other work the firm did for the Board of Education beyond the letters prepared and sent to Potter. The invoice does not specify how much the Board paid for work on the letters to Potter; it only shows a daily billing total for all services.
After receiving the invoices, The Sentinel asked Kansas State Board of Education Chair Cathy Hopkins if she or anyone else authorized Mark Ferguson to write the letters to Debbie Potter, but she did not respond.
