Mandatory Open Government Training: A low-cost, efficient way bring Sunshine to the Dark State

As we move into the second quarter of 2017, we look back at a first quarter that saw no shortage of open government issues.  From one school board’s week-long executive session to another’s refusal to provide notice to the public when an open meeting is to resume after executive session, as well as a finding by the Attorney General that the city of Independence blatantly disregarded the Kansas Open Records Act (KORA), it has been an eventful three months.  So far, there is little to suggest that Kansas is anything other than the Dark State, as is was characterized in a stirring 2014 media broadcast by that name.

These repeated brushes with open government law, and Kansas’ “Dark State” reputation, suggest that although various agencies, including the Attorney General and the Kansas League of Municipalities (KLM), offer optional open government training seminars to public officials, these offerings may be insufficient.

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Mandatory open government training is in all likelihood the best way to ensure that public officials, especially newly elected or appointed officials, comply with laws such as the KORA, the Kansas Open Meetings Act (KOMA), and government ethics lawsTexas, Washington, and Ohio are among those states that require most newly elected or appointed public officials to undergo at least one hour of open government law training.

The Texas law provides a workable model.  By way of practical example, Texas Municipal League, the counterpart to our KLM, outlines how its members comply with the law on its website.

After adapting the Texas language to fit the KORA and KOMA, we are left with the following:

New Sec. 1. Open Government Training

(a) Each elected or appointed officer of a public agency subject to K.S.A. 45-217, K.S.A. 75-4317a, or K.S.A. 75-4301a shall, as well as any person designated under K.S.A. 45-220 as the officer for public information of any public agency, without regard to whether the officer is elected or appointed to a specific term, shall complete a course of training of not less than one and not more than two hours regarding the responsibilities of the public agency and its members not later than the 90th day after the date the officer:

(1) takes the oath of office, if the member is required to take an oath of office to assume the person’s duties as a member of the public agency;  or

(2) otherwise assumes responsibilities as a member of the public agency, if the member is not required to take an oath of office to assume the person’s duties as a member of the public agency.

(b) The attorney general shall ensure that the training is made available.  The office of the attorney general may provide the training and may also approve any acceptable course of training offered by a governmental body or other entity.  The attorney general shall ensure that at least one course of training approved or provided by the attorney general is available on videotape or a functionally similar and widely available medium at no cost.  The training must include instruction in:

(1) the general background of the legal requirements for responding to open records requests and holding open meetings;

(2) the applicability of the Kansas Open Records Act, the Kansas Open Meetings Act, and governmental ethics laws contained in K.S.A. 75-4301a et seq. to governmental bodies;

(3) procedures and requirements regarding quorums, notice, and record keeping under the Kansas Open Records Act and the Kansas Open Meetings Act;

(4) procedures and requirements for holding an open meeting and for holding a closed meeting;  and

(5) penalties and other consequences for failure to comply with the Kansas Open Records Act, the Kansas Open Meetings Act, and government ethics laws contained in K.S.A. 75-4301a et seq.

(c) The office of the attorney general or other entity providing the training shall provide a certificate of course completion to persons who complete the training required by this section.  A public agency shall maintain and make available for public inspection the record of its members’ completion of the training.

(d) Completing the required training as a member of the governmental body satisfies the requirements of this section with regard to the member’s service on a committee or subcommittee of the public agency and the member’s ex officio service for any other public agency.

(e) The failure of one or more members of a governmental body to complete the training required by this section does not affect the validity of an action taken by the governmental body.

This proposed law would place additional responsibility on the Attorney General’s office to ensure that public officials receive the training that would be required.  However, as noted above, the AG’s office already provides open government training on a regular basis, and an increased attendance at such events would be more than welcome.  Moreover, this would be an excellent initiative for the AG’s new Open Government Training Advisory Group to bring to the legislature.  Finally, an important feature of the proposed law is that it would allow other organizations to seek approval from the AG to provide training, leaving the door open for the Sunshine Coalition for Open Government or a like organization to give public officials ample opportunity to comply.

Mandatory open government training represents a low-cost, efficient way to improve transparency in Kansas and bring sunshine to the so-called “Dark State.”  The legislature should consider enacting a law along these lines.

Max Kautsch is the Kansas legal hotline attorney for the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government.  Send him an email here.