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 “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

-- US Supreme Court Chief Justice John Roberts, writing for the 5-4 majority in the June 2007 decision FEC v. Wisconsin Right to Life (PDF), which declared unconstitutional a portion of the federal law known as “McCain-Feingold”

 There is a law called the Kansas Open Meetings Act (KOMA).  One premise for KOMA is that it is more important to protect citizens from government than it is to protect government from its citizens.  If one side should be on the defensive, it should be government:  government should fear its citizens, not the other way around.  Another premise for KOMA is that humans are flawed and easily corruptible; we are at our best when held accountable.

 The basic function of KOMA:  it is almost always illegal for elected officials to gather in a private meeting to discuss government business.  A closed meeting is allowed only in a few situations.

Here is information about KOMA provided by the Kansas Press Association (PDF), and here is information from the Kansas Attorney General (PDF).

 What Chief Justice Roberts stated in FEC v. WRTL is that where there is uncertainty with regard to a citizen maintaining free speech rights, we will err on the side of free speech.  In the same frame of mind, I believe that where there exists doubt about whether Johnson County Community College should be allowed to discuss a certain topic in a closed session – if one could “argue either way”– that the board members must err on the side of openness.  The tie goes to the public, and the decision for an open meeting.

 To change topics:  There is a recession.  As JCCC employees should know, property values have decreased in Johnson County.  This will clearly impact our budget.  Revenue to the college only arrives from a few places.  Primarily, three sources:  tuition, local taxes, and state taxes.  JCCC also does have a healthy cash reserve, and I hope that the administration and the majority of board members are willing to have a full discussion about whether to access those dollars; because there has been very little discussion so far about that, I will not right now assume that accessing our reserves is likely. 

The state obviously doesn’t have any money, in large part due to the 2005 Montoy decision whereby the Kansas Supreme Court illegally increased K-12 government school spending by tremendous amounts.

My expectation is that the JCCC board will approve reasonable tuition increases at rates similar to inflation rates of recent years.  Inflation is a fact of life, and fees must go up.  But tuition increases alone will not balance the college budget.

Two options are left:  property tax increases and budget cuts.

Taxes:  I have clearly stated that I am opposed to any new taxes.  In November 2008, I wrote a letter to The Kansas City Star and objected that the majority of the board is willing to consider the possibility of a tax increase.  In December 2008, some of my colleagues replied in a letter to The Star, stating that it was incorrect for me to write that they are willing to consider raising taxes; rather, they are still considering all options, including tax increases. 

 Today, as I write this, I am confident that the board will not increase taxes.  It could happen, but I doubt it.  A necessary path for the administration and board is cutting the budget – everybody knows this.

 At the most recent board meeting, during a closed session, a five- or six-page paper was handed out to board members.  The document summarizes about 50 uses of money that, if decreased or removed, would help balance our next budget.  There’s really not much to say about the document.  It simply lists and describes all kinds of ways to potentially decrease the budget.  It makes clear what, I would think, is obvious:  almost any area of the college is under consideration for a budget cut.

About a week later, I talked on the phone with Star reporter Jim Sullinger.  Sullinger contacted me and asked if I could provide information with regard to how JCCC – like all area government bodies, particularly in Johnson County – will deal with tightened budgets.  I said:  yes; although, some information I have was handed out during a closed session.  He challenged me:  now, why was it given out during executive session?  I thought about it:  you know what, Jim, you’re right; this document could have just as easily been handed out during an open session. 

I agreed with Sullinger that there is nothing legally sensitive about this document.  There is not one employee name mentioned.  Is the information politically sensitive to a variety of people?  Sure, but that’s irrelevant.  What matters is whether a reporter had a right to see the information.  Can it be debated whether or not a reporter should see the information?  Maybe.  And that is where I will unapologetically restate my belief that when a government official or a government employee is in doubt about whether or not information should be private:  the tie goes to transparency.

Sullinger wrote one article briefly covering the information.  Nothing he wrote in that article was inaccurate.  I could be wrong, but I think it only appeared online, on the political blog “Prime Buzz.”  Not all that many people would have read it, and it would have simply been “bumped” down on the blog as new articles were posted, had there not been an overreaction to the article. 

I am aware that some KNEA faculty members and Dr. Terry Calaway have been highly critical of my “leaking” the information.  As is often the case with board members (who don’t experience the day-to-day environment of the college), I really do not know what the average employee thinks about all this – or whether the average employee even knows or cares. 

I’ll summarize my reaction to the criticism:

·         As I’ve stated, the information was general, non-sensitive.  The public has a right to view the information.

·         Dr. Calaway’s message on Tuesday to the college Email infolist:  it did a disservice to the college.  Calaway writes: 

o       “The reporter subsequently listed a number of items that are purportedly under consideration to be cut or reduced.”  Well, the items are under consideration.

o       “The blog article purports that the college has already defined a course of action.”  No, it doesn’t.  “Under consideration” means exactly that.

o       “The irresponsible nature of this reporting…”  If you’re going to pick a fight with the biggest paper in the area, make it over the right issue.  The Kansas Open Meetings Act is not the right issue.

o       “…had taken place as part of a board of trustees executive session…”  Don’t remind us of that.

o       “The reporter never called me with questions regarding possible budget reductions or to ask for comment.  Unfortunately, the article on the blog leaves the reader with the assumption that he had done so.”  No, I don’t think it did leave the reader with that impression.  But even if it had, reporters are often going to write things that we don’t agree with.  Bias exists in the media.

·         That The Star article contained information that was a surprise to employees:  I’m surprised that you’re surprised.  Most ideas for cutting the budget are under consideration.  That’s all the article said.

·         Really?... KNEA faculty – you’re comfortable knowing that the board and administration interpret broadly, rather than narrowly, the exceptions permitted under KOMA (PDF)?  I hear no concern.

·         Here’s what I have not heard, but that I would certainly ask if I were an employee:  What’s NOT on this list?  Will the board really be willing to separate the wants from needs?  Will the board cut back on my job, my friends’ jobs, or my department – even though they’re unwilling to cut back on these other things that are much less important?

o       Bottom line:  I could point out $1-2 million of spending that I view as either waste or non-vital, and that I would to cut before deciding to affect 99% of departments and employees.  But I’m just one voting member of the board.

Lastly, I need to address why this document was given out during the executive session.  The argument for secrecy is quite simple, and quite weak:  because the document details how budget items will be cut, it therefore affects individual employees within those areas, and it’s therefore a personnel issue.  Using that line of thinking, literally any discussion of taxation or budgeting could be interpreted as affecting individual employees.  This type of interpretation happens all the time around local governments in Johnson County.  I am not going to say right now that it violates the KOMA, but I will state that I do not support this interpretation, and I’m confident most taxpayers would not support this interpretation.

Ben Hodge