I have worked in newspapers for almost 20 years. During that time I have asked a lot of questions. Some have been answered better than others.
None have been handled worse than the Kansas Attorney General’s answer to my question about the Augusta City Council’s July 16, 2012 executive session.
During that meeting, a 20-minute discussion ensued after Mayor Kristey Williams proposed bringing in outside legal counsel to determine if the contract between Augusta and Mulvane for the sale of water could be modified.
In open session, the council discussed in the presence of their attorney almost every aspect of that contract and the options the council had regarding it.
Later in the meeting, Councilor Mike Wallace made a motion to go into executive session to discuss the same contract. The reason given for the executive session was a matter of attorney client privilege.
I’m not an attorney.
But I have covered meetings for two decades and I understand that attorney client privilege no longer exists once you have discussed a matter with your attorney in the presence of others. As a courtesy, I questioned the council about the legality their motion to go into executive session before they voted.
They were given two pieces of legal advice from their City Attorney David All. He told them that they were in a “gray area” and that they were “probably okay” to go into executive session.
Some on the council say that following the city attorney’s advice should be enough for them. That is usually true.
But if an electrician tells me a wire is probably not electrified, I’m not going to grab it. If a doctor says a medication probably won’t kill me, I am not going to take it. If an attorney tells me something is “probably okay” I’m not going to risk violating the law.
“Probably” is not good enough when you are exercising caution. Perhaps in the future, the council will look for more clarity if a question like this arises. Maybe they won’t. In this case, they didn’t.
So after the board decided to go ahead and hold the private discussions, I asked the Attorney General’s office to clarify.
I never asked for the council to be punished. No action even existed which would need to be reversed. I only wanted to make sure that items that should be discussed in public, were discussed in public.
That is the point of the Kansas Open Meetings Act and one of the responsibilities any journalist faces is making sure that governments follow the law. As a board that frequently explains to its constituents that houses must meet certain standards or be torn down and the design of downtown buildings must meet certain requirements because that is what the rules dictate, this governing body should have no problem being held to the standard of following the rules.
Page 2 of 2 - Councilor Mike Huddleston even mentioned Monday night that the council had to be careful about discussing topics from executive session after the meeting was over because it could affect attorney client privilege.
My understanding is that the same is true if you discuss the matter before going into executive session.
But thanks to the drawn-out, botched Attorney General’s investigation, I still don’t know if the council had a right to go into executive session due to attorney client privilege.
I guess by not saying they were wrong, you could infer that the Attorney General’s office was saying that the council was right. However, this same investigator didn’t even take the time to discover what type of city government Augusta employed and never discussed the matter with anyone related to the city government other than the city attorney.
I really wish the attorney general’s office would have simply answered the question I asked. Did the council have the right to claim attorney client privilege? If not, let them know so they could do better in the future.
If they did, tell me I’m wrong. It wouldn’t be my first time.
But a 15-page letter that incorrectly addresses technical issues that I never mentioned in my initial complaint seems discordant.
When I sent my email on that hot July night, I had no idea that three days before Thanksgiving I would be reporting on a 15-page letter that never even mentioned my actual complaint.
The letter mentions that I said the contract was 22 years old. It never even alludes to the fact that the council discussed it publicly for 22 minutes earlier in the meeting.
One thing is true; the investigator in this case has convinced me that asking the attorney general’s office a question about the Kansas Open Meetings Act is not in the best interest of the newspaper or governing body in question.
Kent Bush is the Augusta Gazette Publisher. He can be contacted at email@example.com.