Thursday, February 2, 2012

RECALL BROWNBACK! Violating KOMA also violates his OATH OF OFFICE!

Governor Brownback's brain trust came up with the dull notion that Brownback, not being a "body or agency of the state" can't violate KOMA.  Hopefully  Kansas Democrats serving in the Legislature will knock that slow hanging pitch in the sweet zone right out of the park.
The "Kansas Legislator Briefing Book 2012" page R-1-1, and available online at, is the perfect starting point for the inquisitive legislator. 
At the bottom third of the page is a citation to a case called Memorial Hospital Association v. Knutson, 239 Kan. 663, 669 (1986).  This is important because the holding reminds us that the law is to be liberally construed with narrow exceptions.
The Attorney General's office weighed in on KOMA in 2009.  That document is available at  According to the Attorney General's office " Social gatherings are not necessarily subject to the KOMA; if there is no discussion of the business of the body, one element of a meeting is "missing.".  If you have any questions about KOMA turn to this document, it is a well written, exhaustive, legal memorandum.
Lisa J. Johnson, the Franklin County, Kansas County Administrator / Counselor perfectly detailed the intersection of KOMA and the social gathering.  Her remarks are online at, where she says "Social gatherings or conferences for items of general discussion are not meetings so long as there is no discussion of the specific business of the County Commission."  She too relies on the previously cited Attorney General's opinion.
Now on to the preposterous nitpicking notion that not being a "state body or agency" the Governor is somehow above KOMA.  Not only is Emperor Brownback's brain trust  conservatively construing KOMA while making wide exceptions for him in the law, they forgot the Constitution of the State of Kansas.
Ladies and Gentlemen, I direct your attention to the Kansas Constitution Article 1 §3.  "The supreme executive power of this state shall be vested in a governor, who shall be responsible for the enforcement of the laws of this state." 
Now we have two questions to ask, the first is what does the term "supreme executive power mean" and the second asks if Governor Brownback in violating KOMA breached his legal duty abdicating his responsibility to enforce KOMA.
Professor Saikrishna Prakash, writing in the University of Illinois Law Review, 2003 U. Ill. L. Rev. 703, online at succinctly tells us that the phrase executive power as it relates to the head of state, for America the President and for Kansas the Governor, that each "state body or agency" is an extension of the Governor's supreme executive power.
Professor Prakash's The Essential Meaning of Executive Power, says:
Moreover, the executive power also enable the president to control other governmental officers who execute federal law.  Because only the president has the executive power, others who execute the law derive their authority to execute not from the statutes that create their offices but from the president.  This feature of the executive power reveals why the president is properly referred to as the chief executive.  Other officials who execute the law are "executive" officers by virtue of their law execution role and because they are the chief executive's means of executing the law
Our inquiry into supreme executive authority necessarily leads to the definition of the word "governor" and to this I turn to the American Heritage® Dictionary of the English Language, Fourth Edition. The dictionary says:
1.  n. A person who governs, especially:
2.  n. The chief executive of a state in the United States.
3.  n. An official appointed to govern a colony or territory.
4.  n. A member of a governing body.
5.  n. The manager or administrative head of an organization, business, or institution.
The Century Dictionary and Cyclopedia goes on to say:
n. The person invested with the supreme executive power in a state or community; specifically, as a personal title, the chief magistrate of a state or province: as, the governor of Connecticut; the governor of Newfoundland. As a title, abbreviated Gov.
Both references are online at
A liberal interpretation of KOMA will find that Sam Brownback, by virtue of his Oath of Office, is the head of each and every state agency and board, and those agencies and boards derive their legal authority from the executive power of the Governor.  That the drafters of the legislation did not conceive of any Kansas Governor behaving so arrogantly does not mean the law will not apply to Sam Brownback.  The law, KOMA, will be liberally construed.  The Governor most certainly can be called to task for his secret meetings at Cedar Crest.  Again, don't forget that the Governor, by virtue of his Oath of Office, epitomizes each and every state agency and board.
Beyond KOMA is the Governor's duty to be responsible for the enforcement of the laws of Kansas.  How is possible for the Governor to exculpate himself for the violations of KOMA when it is he who set up the secret meetings of legislators at Cedar Crest.  It takes two to tango, and Senate President Morris informs us that it was Sam Brownback who began advocating KPERS issues.  Now the Governor claims, somewhat unbelievably, that all the legislators in attendance were warned about KOMA.  That's odd, that directly conflicts the statement by Senator Morris.  It is also odd for the Governor to say he warned the legislators about KOMA and then began his advocacy thus enticing his Republican colleagues into violating KOMA. Why is the Governor abdicating his duty to be responsible for the enforcement of KOMA.
By having these secret meetings disguised as social gatherings, by initiating the violations of KOMA through direct advocacy with the majority of the committees of jurisdiction Sam Brownback makes a mockery of his oath.  Brownback is not being responsible for the laws of Kansas.  The grounds for recall require that the official being recalled has violated the law.  Brownback violated the law when he violated KOMA.  Brownback violated the law when he violated his Constitutional Oath of Office.

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