The Gardner City Council violated the Kansas Open Meetings Act (KOMA) on two occasions last summer, according to an investigation by the Johnson County District Attorney’s Office.
District Attorney Steve Howe, in a Jan. 10 letter to the mayor and council, said the council violated KOMA through serial emails on June 10 and at a work session on July 14.
“In both instances, these were violations of the Kansas Open Meetings Act and you should refrain from this type of conduct,” Howe said.
The investigation was the result of a complaint regarding Mayor Dave Drovetta’s use of email for “interactive communication” with council members regarding city business.
KOMA prohibits serial emails between members of a governing body.
In that email, Drovetta asked each council member if they would be willing to increase the maximum salary for the vacant city administrator position by $10,000 for a particular candidate who was “very interested in the position but is currently compensated at a higher rate.”
“I’m writing each of you individually; please respond as soon as practical,” Drovetta wrote.
Howe said, “In my opinion, a mayor and/or city council member can notify other city council members of an agenda item. This can be done through the use of electronic mail. But a mayor and/or city council member should not send an email to a majority of the membership with a request that they indicate their prospective vote on an issue.
“This would constitute a meeting that would violate the Kansas Open Meetings Act.”
Howe also found that the mayor and council violated KOMA by entering an executive session to discuss salary ranges on July 14.
KOMA allows public officials to meet behind closed doors in executive session for matters pertaining to non-elected personnel, attorney-client privilege and land negotiations.
Howe said the salary ranges should not have been discussed behind closed doors.
“This was done even after Councilman (Larry) Fotovich alerted council members of the potential of violating the Kansas Open Meetings Act,” Howe said.
KOMA violations are subject to fines not to exceed $500 per incident.
But Howe said he will not pursue civil penalties against the mayor and council.
“I am not filing an action alleging these violations of the Kansas Open Meetings Act at this time,” he said. “The reason for this is that after the investigation began, the Kansas Attorney General’s Office conducted training on KOMA and the Kansas Open Records Act for you and your fellow members of the Gardner City Council.
“However, should future violations occur, I will reconsider this decision.”
Drovetta said, “I appreciate the efforts of DA Howe’s office in the investigation and his subsequent response. It is important to recognize that we were proactive and scheduled training with the attorney general’s office to reinforce our understanding of KOMA and KORA prior to any investigation. This was noted by Mr. Howe as key in his decision not to file ‘action alleging these violations.’ As we learned in the training provided by the attorney general, each circumstance is unique and should be reviewed against the requirements of KOMA in appropriate context. We also learned that each circumstance can reviewed by different attorneys and different conclusions can be reached.”
The full text of Howe’s letter to the mayor and council can be found here: