TOPEKA, Kan. (AP) — Two defense attorneys who've questioned the fairness of a yearlong investigation in Kansas into Republican campaign activities accused the state ethics commission Thursday of violating Kansas' open meetings law.
The two attorneys represent people investigated by the Kansas Governmental Ethics Commission, and they filed their complaint with state Attorney General Kris Kobach. The complaint said internal documents show that commission members had illegal, secret “serial communications” by email in April 2022 and took official action without a public meeting.
Records obtained by them and The Associated Press show commission members and staff decided by email how to counter a short-lived effort by Republicans in the GOP-controlled Legislature to oust the commission's executive director.
That ouster effort came less than six weeks after the commission subpoenaed at least seven Kansas Republican Party officials in February 2022, demanding that they turn over seven months' worth of communications in 2020 with more than 20 other people.
A commission report justifying those subpoenas suggested that it is investigating whether Republicans funneled national GOP funds through various committees to the state party and legislative candidates in 2020 to avoid contribution limits.
The attorneys filing the opening meetings complaint, Kansas City-area law partners Ryan Kriegshauser and Joshua Ney, also argue that the commission has a history of enforcing ethics rules inconsistently and violating people's constitutionally protected rights to free speech and fair treatment under the law.
Some Republican lawmakers believe the commission is on a fishing expedition, and the Kansas House is considering a bill to overhaul campaign laws and reduce the commission's power over issues raised by Krieghauser, Ney and others.
“Ninety-five percent of the punishment is just the cloud of having an ethics investigation, and so ultimately, the process is the punishment,” Ney said in an interview Thursday. “There is something seriously broken and dysfunctional with this agency.”
The ethics commission's executive director, Mark Skoglund, dismissed the complaint as an effort “to rally support for an absurd bill” that he said would “unleash an endless stream of dark money into Kansas."
Both Kobach and local District Attorney Mike Kagay, who also could wade in, are elected Republicans.
Several people who received the commission's subpoenas are asking a state district court judge to quash them. The commission report justifying the subpoenas listed transactions in 2020 involving Kansas Senate President Ty Masterson and House Speaker Dan Hawkins, both Wichita-area Republicans, before they had those offices.
The report didn't accuse Masterson or Hawkins of wrongdoing, and no complaints have been filed with the commission over such transactions. Masterson said the commission dropped a demand for records from him, while Hawkins said last week that he was never subpoenaed.
Kriegshauser is the attorney for a GOP consultant under investigation and Ney has long represented people facing commission investigations and complaints. They filed an open records request with the commission in late January to obtain more than 100 pages of emails and other communications.
Skoglund released the same documents Wednesday to The Associated Press and said in emails to the AP that the commission already had reported the email chain questioned by the two attorneys to Kagay, the local district attorney. Skoglund said the commission has "a persistent interest in transparency.”
“There has been no determination of a violation and it is entirely possible that no violation occurred in this instance,” Skoglund said in email Thursday.
Kobach’s office confirmed that it received the attorneys’ complaint electronically but said it could not comment further. Kagay did not immediately return telephone and email messages seeking comment.
Internal documents show that on April 4, 2022, three days after legislators tried to oust Skoglund, the commission's general counsel, Brett Barry, emailed commission members a “reminder” that the Kansas Open Meetings Act greatly restricts discussing public business by email. Skoglund told The AP on Wednesday that the commission also had an open-meetings training session in October.
The documents also show that after Skoglund notified commission members about the legislative effort to oust him, one of them, Wichita banker Jane Deterding, emailed back, “Well, that sucks!!”
“I'm all in to help,” she added.
Hours later, after the ouster attempt fizzled, another commission member, Kansas City-area attorney Kyle Krull, suggested an “unofficial” commission-and-staff meeting “at an offsite venue” to host lawmakers and discuss the matter “socially.” His email also said “we can even dip into” commission funds to cover such an event.
That message prompted Skoglund to ask Berry to “gently remind” commissioners of the Open Meetings Act's restrictions, though he said of Krull, "I think he is likely joking.”
But Kriegshauser said such an email shows a troubling “cavalier attitude” from commission members about the power they wield.
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