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City refuses to release text cited in recall

Staff writer

A showdown pitting the Kansas Open Records Act against the Kansas Open Meetings Act appears to be looming in Marion.

City officials have refused to release a text message central to a petition to recall council member Ruth Herbel.

The Record filed a request under the Kansas Open Records Act for a text message that Herbel sent to council members Zach Collett, Chris Costello and Jerry Kline on Nov. 3.

Petitioners say Herbel violated the Kansas Open Meetings Act by doing so.

Even though the text is one of the reasons cited for recalling Herbel, the city has declined to release it.

“The city is taking advantage of a loophole in the law that exempts records made by members of the city council from being disclosed under the open records act,’ media attorney and Kansas Sunshine Coalition for Open Government director Max Kautsch said. “But there is still nothing stopping the city from voluntarily disclosing the text messages.

“Frankly, it should feel obligated to do so given that the contents of at least one of the messages apparently form the basis for seeking to override the will of the people by potentially ousting a duly elected official. 

“The city should welcome the electorate’s ability to challenge or verify the credibility of the ouster petition, which can only be accomplished if the messages are available for public review.”

State law defines a public record as “any recorded information, regardless of form, characteristics, or location, that is made, maintained or kept by or is in the possession of any officer or employee of a public agency pursuant to the officer’s or employee’s official duties and that is related to the functions, activities, programs or operations of any public agency.”

The city’s response to the Record’s official request quotes state law that “notwithstanding the provisions of paragraph (1), ‘public record does not include: (b) records that are made, maintained, or kept by an individual who is a member of the legislature or the governing body of any political or taxing subdivision of the state.”

Herbel contends — and has a copy of — a message Herbel sent at the precise time alleged. It was in response to a notification regarding a plan, later abandoned, for an all-night blackout. The note to which she was responding dealt with how the city had coordinated the blackout with St. Luke Hospital. The note read simply: “Thanks.”

Herbel denies her text amounted to a “serial meeting” by state definition. Serial meetings are when members of public bodies meet one-on-one, or depending on the size of the council or board, two-on-two to avoid a majority.

The recall petition also accuses Herbel of violating the Kansas Open Meetings Act for disclosing what council members discussed before firing former city administrator Mark Skiles.

The law does not preclude any individual from disclosing what was said in an executive session except in limited circumstances. Even Mayor David Mayfield, one of the sponsors of the recall, has publicly admitted this.

Petitioners also say she disclosed information that was covered by attorney-client privilege. However, the city did not cite attorney-client privilege as a reason for meeting in executive session, and its lawyer — who would be necessary for such privilege to exist — was not present.

Last modified March 2, 2023

 

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