Weeks before Gov. Sam Brownback (R-KS) publicly outlined proposals to fill the $710 million budget hole created by his massive tax cuts for corporations and the wealthy, the Republican's office shared details of the forthcoming plans with two private lobbyists closely tied to the governor.
In a December 23 email obtained by the Wichita Eagle, Shawn Sullivan, Brownback's budget director, previewed Brownback's coming proposals to increase sales taxes on cigarettes, divert money from the highway trust fund to the state's general revenue fund, and alter Kansas' public school funding formula. The recipients were David Kensinger, a longtime GOP operative who served as Brownback's chief of staff from 2011 to 2012 before establishing his own lobbying shop in Topeka; and Mark Dugan, who managed Brownback's 2014 re-election campaign and became a lobbyist after the governor defeated Democratic challenger Paul Davis by four percentage points in November.
Sullivan sent the email through his private Yahoo account. In addition to Kensinger and Dugan, other Brownback administration personnel and higher education officials were also copied on the email, mostly using non-government addresses.
Under questioning from local media, Sullivan insisted that he had not used his private account to circumvent Kansas' open records law.
“Why it was done on personal email was because it was done while I was at home on Christmas,” he explained. However, it's unclear whether or not Sullivan has access to his work email account when he isn't in the office.
A local open records expert told the Topeka Capital-Journal that the state's Open Records Act contains a "loophole" whereby correspondence from private accounts isn't liable for public disclosure.
“It’s definitely a loophole,” said Mike Merriam, a retired Washburn University law professor and current general counsel for the Kansas Press Association. “So government officials are able to communicate with each other even on official business as long as they do it at home and that’s plainly not the intent of the law in my opinion.”
Brownback did not publicly unveil his budget plan until less than two weeks ago. While many media outlets depicted his call for new sales taxes as a reversal of course, Brownback has vowed to proceed toward zero income tax, albeit at a slower pace.
Tax experts expected the governor to rely on regressive sales taxes to make up the revenue shortfall, and the governor accordingly presented his plan for higher cigarette sales taxes. The administration also plans to cut contributions to the state's pension system, which already ranks as one of the worst-funded in the nation.
News of the Brownback administration's private correspondence with the lobbyists comes less than one year after it emerged that one of the two lobbyists, Kensinger, is under FBI investigation in a pay-for-play probe concerning alleged influence-peddling in state government. The investigation remained open as of last fall.
But Kensinger isn't the only one facing legal woes. Shortly before Brownback was inaugurated for a second term this month, word leaked that he and Lt. Gov. Jeff Colyer are under investigation by a federal grand jury over hundreds of thousands of dollars in loans Colyer made their re-election campaign last year.