Kaw and Border blog — What Goes Around Comes Around: Hodge Wins KOMA Argument

MONDAY, NOVEMBER 2, 2009

What Goes Around Comes Around: Hodge Wins KOMA Argument

Link: http://www.kawandborder.net/2009/11/what-goes-around-comes-around-hodge.html

Hats off to Ben Hodge. In a clear case of principle winning over politics, Ben’s months-long battle regarding violations of the Kansas Open Meetings Act at Johnson County Community College has now been proven correct.

Like many cases involving whistleblowers, Ben’s efforts were not always met with support or a lot of backing. He was a virtual one man army, fighting against the Republican establishment, the elites at Johnson County Community College, some windbags in the media, and a lack of enthusiasm for the issue among his own conservative base.

As we have covered at this blog, Ben’s crusade began late last winter, when he raised the issue of two violations occuring at JCCC — most particularly, the issue of 64 budget items being discussed in a closed session. Rather than acknowledge the mistake, the powers-that-be at JCCC tried everything to belittle Hodge, including letters to the editor (which was the subject of the other inquiry) as well as intimidating through legal threats. All the while, seeing Ben’s efforts as a one man effort, his opponents tried to ignore the issue at hand — the violation of Kansas law. They mistakenly viewed Ben as someone who would one, back down, and two, never get the kind of legal and political backup he would need to win the day.

Hodge, refusing to back down, went to District Attorney Steve Howe with his complaint. After several weeks, Howe issued what is now seen as a bizarre opinion saying no violation occurred, setting the terrible precedent that now basically any local government — city councils, school boards, county commissions, etc — can talk about budget cuts in private as long as ONE of the items being discussed was of an employee. This pandora’s box would render KOMA meaningless.

Still refusing to back down, Hodge ignored Howe’s ruling and rounded up four former colleagues — Lana Gordon, Anthony Brown, Owen Donohoe and Chris Steineger — and they sent a letter to AG Stteve Six asking for an opinion on a hypothetical case that was similar to the case at JCCC. Given that the interpretation of a critical Kansas statute is indeed a state matter, they had every right to know what the AG’s opinion would be in similar cases. Six responded and essentially disagreed with Howe in this opinion. Howe was then quoted as saying he stood by his opinion, but unfortunately for him, it did not end there.

  • Three organizations — the Kansas Press Association, the Kansas Association of Broadcasters, and the Kansas Sunshine Coalition for Open Government — all issued a joint letter to Howe asking him to review his previous opinion.
  • The Star issued an editoral board opinion criticizing Howe’s opinion. For once, we at K&B actually agree with the Star when they said this — Howe’s opinion leaves a wide hole for school boards, city councils and other boards to conduct public business behind closed doors. That’s not a precedent the district attorney should set. That’s exactly the point we have been making all along in defending Hodge’s efforts.
  • Today, KMBC blasted both Howe and the JCCC President and Trustees here.

So much for that pesky Ben Hodge going away, huh?

Yes, amazingly, the combined brainpower at JCCC and the District Attorney’s office came up with a line of decision making that was so out of the realm of being reasonable that it actually put conservative Ben Hodge and the mainstream media (the Star, KMBC) and its representatives (Press Association, Association of Broadcasters, Sunshine Coalition) on the same page on an issue.

Of course, what Howe and the JCCC elites failed to realize is that though the media might typically side with liberals, if you cross the line into actually defending closed government, the media (with the notable exception of Steve Rose, whose Sun Publications, which blasted Hodge in a Memo, remains noticeably silent while its allies defend Ben and the principles behind his actions) said no. The reason? Because without open meetings laws being enforced by the institutions (the DA) legally entrusted to enforce them, the “Free Press” part of the First Amendment is rendered invalid.

Hopefully, in the coming days, Steve Howe will come to his senses and actually issue a new opinion. The problem is, he’s put himself into a political box which it is hard for him to escape. See, as we’ve discussed before here, Howe owes his power to the Johnson County elites who are part of the same crowd that started this whole ball rolling at JCCC anyway. Howe would earn some points if he’d back pedal, admit he was wrong and tell JCCC he’s not going to defend their closed meeting policies anymore.

What’s amazing about this whole episode is that the powers-that-be, including Howe, Calaway, and the other members of the JCCC Board could have put this thing to bed at several points throughout the entire process:

1. They could have not made the violation in the first place.
2. After Hodge revealed the violation, they could have acknowledged their mistake, apologized, and took corrective action.
3. After Hodge complained to Howe, and Howe started to investigate, the JCCC Board could have again backed off.
4. Howe could have issued an opinion which actually made legal sense.
5. The Board could have relented after the AG opinion.
6. Howe could have relented after the AG opinion.
7. Howe could have relented after the letter from the three organizations referenced above.

Instead, the JCCC Board of Trustees, Terry Callway and Steve Howe (Dewey, Cheatum, and Howe?) have essentially put themselves in the place where pride is more important than principle, as they are now defending the indefensible. This is truly a situation where the coverup is worse than the crime.

The media, the Attorney General, several state legislators, etc — have all now taken Ben Hodge’s side…yet Dewey, Cheatum, and Howe are apparently bounde and determined to remain firm in their view that is okay to violate KOMA, even if they look ridiculous in the first place.

So, after about 8 months of going thorugh the entire legal process, we’re essentially where we were when this all started — at the JCCC Board of Trustees. An obvious KOMA violation occurred, the AG agrees, the local media agress, the statewide press associations agree, and the only person who disagrees is the entity that could tell them to stop — the local DA. Ain’t politics grand? Good news, due to Hodge’s efforts, the ball is now essentially back in the JCCC Board’s court — because, unless Howe admits he was wrong, the focus is on them.

– Will they ever acknowledge the KOMA violation occurred?
– By standing by it, and with Howe’s backing, are they essentially saying this will continue? With Hodge not on the board now, who among the 7 Trustees has the courage to blow the whistle? Stephanie Sharp? Lynn Mitchelson? Jon Stewart? Don’t hold your breath.

I guess we’ll have to wait and see. In closing, though, the following groups and individuals need to be made:

– Hats go off to Ben Hodge for having the courage to not back down in the face of elitist criticisms and for pressing forward. The facts were always on his side.

– Hats off to the four legislators who stood with their former colleague in agreeing to send the letter to Six.

– Hats off to Six for issuing an opinion which clearly contradicted the local DA.

– Hats off to the local press associations, the Star, and KMBC for criticizing Howe and the JCCC Board of Trustees.

Most importantly, there are also some lessons that need to be learned here:

First of all, principle can win over politics when one has the facts on their side.

Second of all, the elites are not the be all and end all of power in Kansas.

Third of all, just one voice of reason on a board/council can have a tremendous impact.

Fourth of all, be very cautious of “consensus” candidates like Howe, who in order to preserve that consensus, thus do not have any courage to act correctly when the law contradicts perceived necessary politics.

And finally, for all those out there who doubted the efforts of Ben Hodge in this case, perhaps you might want to send the man an e-mail congratulating him and admitting you were wrong. Without his efforts, the awful culture of incompetency at JCCC would have never been exposed, and most importantly, your ability to learn information about what is going on in the halls of Kansas government would have been damaged severely.

For at the end of the day, this was not a victory for Hodge, but a victory for open government in Kansas — and that is something all of us — conservatives, liberals, and independents — should all be grateful for.

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