City Council members are considering an addition to their rules that would discourage them from leaking out information about what they discussed in private executive session meetings. Open government watchdogs are disappointed with the rule. Council members say it’s a necessary way to keep personnel information from getting out and save the city money by not driving up the price of property when the city is considering buying it. Council member Jeff Longwell said he strongly believes in transparency in government. But he said some things must remain private and that the city attorney always interjects if the private meeting discussions stray from what they may legally discuss.
The proposed policy states:
“During the course of their duties, Council members will receive confidential information or attorney-client privileged communications that for good reason may be withheld under the Kansas Open Records Act, Kansas Open Meetings Act and other laws. This will be information that is commercially sensitive or is personal to a particular individual or organization and may affect City’s legal rights and responsibilities. Council members acknowledge that failure to observe confidentiality will impede the performance of the council by inhibiting information flows and undermining public confidence in the council. The confidentiality of this information will be protected by Council members and not disclosed unless a resolution of the Council to release the information is adopted by a majority vote of the Council members.”
If someone violates the policy, the council by majority vote could either “censure” or “reprimand” that person, which is recorded in council minutes showing majority of the council believe the “leak” was improper and violated council rules. The policy seems to stem from council members telling reporters and others about some things that were said or discussed in executive session. It was most prevalent during last year’s council and mayor campaigns. Some “leaks” have come from council members who believed discussions went beyond what can legally be discussed in executive session. Other “leaks” have been to business people and lobbyists about land acquisition and business proposals.
Wichitopekington e-mailed the proposed rule to open government advocates for reaction. Here are some excerpts.
Randy Brown, a senior fellow at Wichita State University’s Elliott School of Communication and the executive director of the Kansas Sunshine Coalition for Open Government, wrote: “Sure there are a few things that need sensitive private discussion. But this proposal is part of a new culture of secrecy that can only damage the democratic and further erode the public trust. The idea that the City of Wichita or any other government body can control the flow of information is a kind of governmental arrogance that’s epidemic these days.”
Doug Anstaett, executive director of the Kansas Press Association, wrote: “If the council wants to increase the public’s confidence in it, then it should limit executive sessions to a bare minimum and make sure the discussions never stray from those subjects covered by the Kansas Open Meetings Act. To muzzle those courageous enough to speak out when KOMA is violated is an anti-free speech and free press stance that should not be tolerated by the citizens of Wichita.“
Mike Merriam, a Topeka-based attorney who has represented the Kansas Press Association and some media outlets, wrote: “This proposed rule is rather silly. It apparently only applies to “information” received and attorney client privileged communications, so it would not prohibit revealing any other aspect of the discussion. The elected council members are the “client” for privilege purposes, and the client controls the privilege, not the attorney. A client is always free to disclose otherwise privileged communications if it so chooses. It’s only the lawyer who can’t disclose without permission. The threat of censure is meaningless. The council can say whatever it likes but it has no power to punish an elected member. If I was on the council and was censured for whistleblowing on an improper session, I’d be proud of it. Maybe issue my own censures right back.”
The Council plans to vote on this proposal along with other revisions and additions to the council’s rules at their March 18 meeting.