A public-interest group in Kansas is accusing Governor Laura Kelly and her administration of violating the Kansas Open Meetings Act.

In a filing stretching more than 100 pages, Ryan Kriegshauser of the Kriegshauser-Ney law firm accuses Kelly and her administration of more than a year of obfuscation and misdirection.

Kreigshauser represents the Trust Kansas Coalition and began trying to determine who was making determinations as to which businesses were “essential” and which ones were “non-essential” at the beginning of the COVID-19 lockdowns.

“We represent the Trust Kansas Coalition, Inc., an organization that has been investigating certain governmental actions regarding COVID-19 since March of 2020,” the filing reads. “This complaint is the culmination of nearly two years of investigation and efforts at attempting to obtain documents from various executive branch agencies regarding the activities of a gubernatorial task force formed in March 2020.”

Of particular focus was the task force created by Kelly early in the pandemic to administer her executive orders involving “essential functions” designations called the Kansas Essential Functions Framework Team, or KEFF team. The KEFF Team apparently included personnel from the Kansas Department of Health and Environment, the Kansas Department of Emergency Management, the Kansas Department of Commerce, and the Office of the Kansas Governor.

The complaint alleges that the KEFF Team held “numerous meetings,” which would be defined as open by KOMA, and engaged in “serial communications” in which binding decisions were made or official guidance was submitted. 

Serial communications — in which one member of a board or agency subject to KOMA contacts another, who contacts another, and so on — are strictly prohibited by law.

“By all appearances, these meetings were not open to the public, had no public notice, had no prior written agendas issued, and were not recorded,” the complaint alleges. “Additionally, numerous individuals and businesses seem to have submitted information to the KEFF Team for determination at an online form and email address created for this purpose. However, these individuals and businesses were never given notice of or invited to KEFF Team meetings.”

Kansas law requires notice to be given of public meetings, agendas to be provided, and minutes must be kept.

It would appear none of this was done, and when Trust Kansas tried to get information about just who was on the KEFF Team and how decisions were made, the administration stonewalled.

“In August 2020, the Trust Kansas Coalition submitted several open records requests to executive agencies, including the Office of the Kansas Governor, seeking records related to the activities of the KEFF Team,” the complaint says. “After receiving a few preliminary responsive documents, we sought additional information from the Office of the Governor about the KEFF Team’s organic structure and creation. The Office of the Governor ignored our Kansas Open Records Act requests for over a year.”

It is something Kriegshouser said in an emailed statement that should never have had to happen.

“It is unconscionable that Governor Kelly did not produce records related to her secret business shut-down task force for over a year,” he said. “Citizens shouldn’t have to draft and threaten litigation to get simple public records, especially when the records involve the Governor’s actions in shutting down small businesses. Governor Kelly’s office had no process in place to handle government transparency requests. Kansans deserve better, and the Governor’s office should not be able to circumvent the law through incompetence.”

Kelly only produced records after the threat of a lawsuit

When they couldn’t get the records sought, the coalition threatened legal action, which eventually produced some results.

“Because of the unresponsiveness of the Office of the Kansas Governor, counsel for the Trust Kansas Coalition demanded production by threatening to file suit pursuant to the Kansas Open Records Act,” the complaint states. “The Proposed Petition was never actually filed in Court because the Office of the Governor began producing additional documents upon receipt of our demand letter and draft petition. However, the outcome of the KORA investigation of the Office of the Kansas Governor clearly showed that organic documents for the KEFF Team, such as organizing documents, including meeting notes/minutes, agendas, membership lists, designation correspondence, attendance rosters, organizational charts, and public notices of meetings did not exist.”

Guy named ‘Bill?’

In July of 2020, Trust Kansas and the Americans for Prosperity Foundation-Kansas, managed to obtain a spreadsheet detailing many of the determinations made by “Bill,” who was apparently William Glynn of the Kansas Intelligence Fusion Center, showing that the KEFF Team was taking official action, outside of public scrutiny.

Other members of the team appear to have been Gene Lueger at the Kansas Department of Health and Environment, Clay Britton at the Office of the Kansas Governor, Bob North at the Kansas Department of Commerce, and Jared Hartter at the Kansas Intelligence Fusion Center.

“Various emails produced pursuant to the Kansas Open Record Act from KDHE indicate that the ‘KEFF Team’ met numerous times, presumably starting March 31, 2020, and developed a spreadsheet indicating which businesses were designated ‘essential’ or ‘non-essential,'” the complaint reads. “It seems that the KEFF Team also conducted business through emails, calls, and meetings, making numerous policy decisions, issuing guidance, and making determinations about business statuses through May 6, 2020.”

Seeking guidance and an open meetings determination

Trust Kansas is not suing, as the complaint was filed with Kansas Attorney General Derek Schmidt, nor asking for records to be produced, but rather is asking Schmidt’s office to find that KOMA was violated by the Kelly Administration and to issue guidance for future state administrations.

“Governor task forces are subject to the Kansas Open Meetings Act, so it is absurd that we’re just now able to shed light on secret meetings her shut-down squad held during the early days of the pandemic.” Josh Ney, co-counsel on the suit and partner with Kriegshauser Ney Law Group. “The documents we’ve uncovered show that the task force made formal decisions to shut down certain small businesses while giving their competitors a pass. Secret bureaucratic committees should never be able to operate in the dark with this type of expansive, arbitrary power.”

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