IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION FOUR
The Associated Press, et al., )
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Plaintiffs, )
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v. ) Case No. 02-C-1583
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Kathleen Sebelius and )
The Governor Elect Transition Office, )
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Defendants. )
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MEMORANDUM DECISION AND ORDER
The above-captioned matter comes before the Court on Plaintiffs’ Application for a Temporary Restraining Order and a Temporary Injunction and on Plaintiffs’ Request for Declaratory Judgment. After careful consideration, the Court finds and concludes as follows:
1) Kathleen Sebelius is Governor-Elect of the State of Kansas.
2) The Governor-Elect will be sworn into office on January 13, 2003.
3) Kathleen Sebelius is currently elected Kansas Commissioner of Insurance, an office she will hold until January 13, 2003.
4) Ms. Sebelius began creation of the Budget Efficiency Savings Team (BEST) on November 6, 2002, by calling people she wanted to serve on BEST.
5) BEST team leaders met for the first time on November 12, 2002. Team members had not all been selected at that point.
6) The purpose of BEST before Ms. Sebelius is sworn in is to gather information and identify target areas on how to find efficiency and savings in state government. Team leaders will report their preliminary findings to Ms. Sebelius at some point before inauguration. Analysis, discussion, and recommendations based on those findings will be made in public meetings after her inauguration.
7) BEST has no decision making authority.
8) BEST is comprised of approximately 60 people, excluding state employees assigned as staff to BEST pursuant to K.S.A. 75-134. The 60 members have been divided into five groups: agriculture and natural resources, economy, human services, infrastructure, and public safety.
9) At Ms. Sebelius’ request of Governor Graves, each BEST team has been assigned two or three state employees (12 total) who were assigned to the transition team by Governor Bill Graves pursuant to K.S.A. 75-134. They continue to receive their salary.
10)BEST team members receive no compensation or reimbursement for their time, mileage, or anything else, other than minor refreshments. (Lunches were paid for out of private campaign funds.)
11)BEST teams have met on State property without payment to the State.
12)A majority of a quorum of the entire BEST membership has never met.
13)A majority of a quorum of members of individual BEST teams have met several times for the purpose of discussing the business and affairs of BEST. Two teams have met 3 times, and 2 teams have met 4 times.
14)A majority of a quorum of BEST teams have met in private for the purposes of discussing the business and affairs of BEST, declining to open its meetings to the public, stating that [the Kansas Open Meetings Act] KOMA does not apply to BEST.
15)BEST has received requests for KOMA notice pursuant to K.S.A. 75-4318(b) from the news media. BEST has declined to provide such notice, stating that the KOMA does not apply to BEST.
16)An expressed intention for the teams not to meet before January 13 does not make the case moot.
17)The Governor-Elect has stated that she concedes that after her inauguration BEST falls under KOMA, and BEST will comply with KOMA openness and its notice requirements.
1) Kansas law refers to the governor-elect as incoming governor.
2) As incoming governor, Kathleen Sebelius has limited resources to prepare for the assumption of official duties as governor. The Court will refer to these resources as the Governor-Elect Transition Office (GETO).
3) On December 12, 2002, a hearing was held at which Jeremy Anderson, director of policy for GETO, Jeff Burkhead, executive director of the Kansas Press Association, and Cliff Schiappa, assistant Associate Press bureau chief, testified. Additionally, stipulated exhibits and documents were admitted into evidence for the Court’s consideration. Following the hearing, the Court requested additional briefing on the applicability of the general provisions contained in K.S.A. 75-4318(a).
4) Prior to and during the December 12, 2002 hearing, when asked if this case was moot, attorneys for Kathleen Sebelius indicated to the Court that the BEST teams would continue to meet in a limited capacity prior to the inauguration. This statement, in addition to the parties stipulated fact number sixteen, makes the issue ripe for review.
Requirements for a Temporary Injunction
In National Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, ___ Kan. ___, 38 P.3d 723 (2002), the court held that “injunctive relief is equitable in nature and a substantial showing is required before a court is warranted in ordering a party to do or refrain from doing a certain act.” Id. (citing Kansas East Conf. of the United Methodist Church, Inc. v. Bethany Med. Ctr., 266 Kan. 366 (1998). The general requirements for a temporary injunction are set forth in Wichita Wire v. Lenox, 11 Kan. App. 2d 459 (1986). To grant a temporary injunction, the following four-part test must be met:
“(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing parties; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.”
Id. (citing Lundgrin v. Claytor, 619 F.2d 61 (10th Cir. 1980) and Uarco Inc. v. Eastland, 584 F.Supp. 1259 (D.Kan. 1984).
While the burden of proof is on the Plaintiffs to show the temporary injunction should be granted, under KOMA “the burden of proof shall be on the public body or agency to sustain its action.” K.S.A. 75-4320a(b). It is, therefore, Defendants’ obligation to prove KOMA does not apply to the meetings in question. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663 (1986).
The policy of the State of Kansas regarding open meetings is set forth in K.S.A. 75-4317. “In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.” Id. KOMA applies to “all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state…” K.S.A. 75-4318(a). In addition, “Meetings of task forces, advisory committees or subcommittees of advisory committees created pursuant to a governor’s executive order shall be open to the public…” under KOMA. Id. Thus, while the scope of KOMA is broad, it applies only to designated governmental entities. Every publicly funded group is not automatically subject to KOMA.
In order to grant a temporary injunction, Plaintiffs must show the Court that there is a substantial likelihood that they will prevail on the merits. Based upon the clear and unambiguous language of KOMA, the Court finds Plaintiffs cannot prevail on the merits.
Plaintiffs have argued that, for the purposes of KOMA, Kathleen Sebelius is the equivalent of governor. Defendants contend that Ms. Sebelius is nothing more than a private citizen. The Court finds little merit to either position. Kathleen Sebelius does not have any of the powers conveyed to the governor. She cannot sign legislation, utilize executive orders, or modify the state budget. However, by statute she is granted powers beyond that of a private citizen. She has the limited ability to use state office space, expend state funds, and utilize state employees. K.S.A. 75-134.
K.S.A. 75-134 provides the incoming governor resources to “prepare for the assumption of official duties as governor.” Id. The words “prepare for the assumption of official duties” imply future, not present, powers and responsibilities. For the purposes of this decision, the Court will refer to these resources as the Governor-Elect Transition Office (GETO). It is important to note that the legislature did not create a transition office; it merely provided the incoming governor with specified resources to be utilized at his or her discretion.
The purpose of organizing GETO is “to promote the orderly transfer of the executive power of the office of governor upon the expiration of the term of office of a governor and the inauguration of a new governor.” K.S.A. 75-133. The incoming governor is given limited powers to operate the transition office. There is no dispute that Kathleen Sebelius is the incoming governor, pursuant to K.S.A. 75-132.
In analyzing the status of the BEST teams, the Court must carefully consider where the authority to create the teams originated. The parties have stipulated that Kathleen Sebelius created the BEST teams in her capacity as incoming governor. There
is no dispute that members of GETO assist the BEST teams. Therefore, the teams are subordinate groups of the incoming governor’s transition office.
For KOMA to apply, the BEST teams must be either (1) a task force, an advisory committee, or a subcommittee created pursuant to a governor’s executive order, or (2) a subordinate group of a legislative body, an administrative body, or an agency of the state. K.S.A. 75-4318(a).
By statute, Kathleen Sebelius is designated as the incoming governor. K.S.A. 75-132. As the incoming governor, she is to work with the outgoing governor, Governor Bill Graves, and his administration “to promote the orderly transfer of the executive power…” K.S.A. 75-133. The Kansas Constitution creates the office of governor. Kansas Constitution, Article 1. Because the office of governor is not statutorily created, it does not fall within the definition of a state or administrative agency. Therefore, the general provision of KOMA does not apply to the governor or any groups appointed by the governor.
In 2001, the Kansas Legislature amended K.S.A. 75-4318(a) to add specific coverage for governors’ task forces created by executive order. The legislative history of the 2001 amendment shows that the legislation was offered in response to Governor Graves establishment of a task force, which he called the “K-12 Education Financing for Results Task Force.” The Graves’ task force did not fall within the general provisions of KOMA, thus elected to meet in private. With the passage of the 2001 amendment, KOMA was broadened to include groups, under the direction of the governor, that function in much the same capacity as the BEST teams.
While Plaintiffs have suggested Kathleen Sebelius is the equivalent of governor, that is a leap this Court is unwilling to take. No matter how broadly interpreted, an incoming governor simply does not have the authority of a sitting governor. In addition, the 2001 amendment only applies to task forces created by executive order. As incoming governor, Kathleen Sebelius lacks the power to issue executive orders. The Legislature is in the business of drafting and modifying state statutes, therefore, had the Legislature intended the 2001 amendment to apply to incoming governors they would have said so. To apply this provision to an incoming governor would result in this Court changing state law.
Because GETO does not fall under the provision of KOMA referring to the governor, the Court must determine if it fits within the general provisions. Plaintiffs have indicated that GETO most closely resembles an agency of the state. Plaintiffs appear to concede and the Court agrees that GETO is clearly not a legislative or administrative body, nor a political or taxing subdivision thereof, yet does have some characteristics of a state agency.
K.S.A. 77-502 defines “state agency” to mean “any officer, department, bureau, division, board, authority, agency, commission or institution of this state . . . which is authorized by law to administer, enforce or interpret any law of this state.” The Court finds that the transition office is an institution of this state. However, to be an agency, the transition office must also be “authorized by law to administer, enforce or interpret” a Kansas law. Id.
As indicated above, GETO is not even a statutorily recognized body. The Court is referring to the group of resources provided to the incoming governor as GETO. Even if GETO was established by statute, by its very definition, its only power is “to promote the orderly transfer of the executive power.” K.S.A. 75-133. The clear purpose of the office is to transition from one governor to the next. Id.
Plaintiffs have failed to show, and the Court has failed to find, any law that the incoming governor, GETO, or the BEST teams are authorized to “administer, enforce or interpret.” The BEST teams think, deliberate, discuss and opine. In no way can they function governmentally. Agency implies the capacity to act and therefore, the entities do not meet the definition of an agency of the state and thus KOMA does not apply to them.
In Kansas, entities “that are merely advisory and have no decision-making authority” are not subject to the open meeting laws. Memorial Hospital Asso. v. Knutson, 239 Kan. 663 (1986). Power to do something, other than provide mere advice, is also what federal courts look to when determining whether task forces are “agencies” under the Freedom of Information Act. Bush v. Task Force on Regulatory Relief, 981 F.2d 1288 (1993). The parties have stipulated that the BEST teams have no decision making authority. In addition, in her present capacity, Kathleen Sebelius also lacks authority to make decisions that are binding on the State of Kansas. K.S.A. 75-132 et seq. Neither she nor GETO can act, react or transact on behalf of the state. Because neither Governor-Elect Sebelius, GETO, nor the BEST teams have decision-making authority, they are not subject to KOMA.
As Plaintiffs have failed to show there is a substantial likelihood they will prevail at trial, the Court need not address the three remaining requirements of granting a temporary injunction.
In denying the application, the Court must state that this was an extremely difficult decision to render. Kansas law declares that the policy of our state is that meetings for the conduct of governmental affairs and the transaction of government business be open to the public. Governor-Elect Sebelius has acknowledged she recognizes the applicability of KOMA to advisory groups such as BEST after her inauguration. As governor, KOMA will clearly apply to any and all task forces and groups she may appoint. Such is the law. If the openness of the decision making process is an inherently sound democratic principle, is it not equally as worthwhile before January 13, 2003 as it is after that date? Defendants stated in their Motion to Dismiss that “[t]he public is better served by elected officials who can receive candid comment and advice from the general public….” The Court recognizes the financial crisis facing our state and the Defendants’ position that perhaps more candid information to solve some of our troubles may be elicited from confidential meetings. However, this simply misses the point. The time has long passed that critical public policy decisions can be formulated and based on privately held discussions and secret meetings that hold no one accountable. KOMA’s purpose and design rests on the premise that the foundation of our government is dependent upon an informed electorate. When meetings that directly impact public policy of our state occur out of the public eye or ear, our democracy is put in jeopardy. Thus, had the Court been provided with a legal option to do so, it would have most certainly ordered the BEST team meetings open. However, Kathleen Sebelius, GETO, and the BEST teams do not fit within the scope of the Kansas Open Meetings Act. KOMA applies to the power and authority that commences with inauguration, not before.
Based on the foregoing reasons, the Court denies Plaintiffs’ Application for Temporary Restraining Order and Temporary Injunction. In addition, because the Court
has found that neither Governor-Elect Sebelius, GETO, nor the BEST teams are subject to KOMA, the Court denies Plaintiffs’ Request for Declaratory Relief.
This Memorandum Decision and Order shall serve as the Order of the Court, no further journal entry being required. Dated this 6th day of January 2003.
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Eric S. Rosen
District Court Judge