Whether or not the Faculty Senate violated state law when it voted by secret ballot and then destroyed the ballots April 1 is still being debated. University officials have either denied or sidestepped the issue, but a spokesman for the state press association says the senate is clearly subject to state sunshine laws.
President Michael Lane declined to comment on the secret ballot, citing “pending possible legal issues.” Senate President Harvey Foyle said during Tuesday’s meeting that he does not believe the group is subject to the Kansas Open Meetings Act.
At another point in the meeting, however, he appeared unsure.
“I actually have no knowledge of whether we’re under the Kansas Open Meetings Act,” Foyle said. “I don’t believe we are, simply because it’s never come up, it’s never been dealt with. The one small element I know in the Kansas Open Meetings Act says no secret ballots. We have secret ballots in our constitution. And I functioned clearly as best I could with the others.”
Mike Merriam, a lawyer for the Kansas Press Association, disagreed.
“That’s not much of a reason,” Merriam said during a telephone interview on Wednesday. “I don’t know why they wouldn’t be; they are a subordinate group of a public agency — the university. I know of no reason why they would not be under KOMA.”
The senate operates under a parliamentary handbook first published in 1876 known as “Robert’s Rules of Order.” When asked if “Robert’s” trump Kansas law, Merriam said no.
“Robert’s Rules does not have the force of law,” Merriam said. “It’s just an organizational tool that people may or may not employ as they see fit. The law, though, is binding. They do have to abide by the Kansas Open Meeting Act; they don’t have to abide by Robert’s Rules.”
The secret ballot was rescinded at Tuesday’s meeting and a roll-call vote was taken instead. Foyle said the senate rescinded the vote to honor Lane’s request for transparency, and not under pressure from any outside group, an apparent reference to The Bulletin.
One senator, however, questioned the legality of the secret ballot.
“It is my understanding, my reading, of the Kansas Open Meetings Act, under Kansas Statute, that secret ballots are not allowed,” said John Dougherty, internal auditor and director of governmental relations, during Tuesday’s meeting.
In response, Foyle said he relies on Lane for information about KOMA.
“I believe that we are not under the Kansas Open Meetings Act,” Foyle said. “Otherwise, this would not be this way. Also, I have sought clarification of that particular issue. That’s not the issue before us. We’re not going to get into a debate about that. I’m seeking clarification of that to find out whether we are or are not. There has been, in my opinion, misinformation on that subject in a variety of places and that’s why we’re seeking clarification. Before anybody asks who we are seeking clarification of, I’m seeking clarification from President Lane, who seeks clarification from those who give him, who he gets information from.”
Lane, however, said he was relying on the Faculty Senate for answers.
“What I’m doing right now is waiting to see what the faculty senate does at their meeting this afternoon,” Lane said. He also said he wasn’t planning to issue a statement regarding whether the Faculty Senate is subject to KOMA or the Kansas Open Records Act.
“In our meeting with Mark Goodman,” Lane said, “we told him the manner in which we would be dealing with the situation and we didn’t say we’d be issuing a statement.”
Last week, Lyon County Prosecutor John Marcus Goodman said he expected the university to issue a statement.
“I have requested informally that the university state its position on whether they believe the Faculty Senate to be an open meeting or not,” Goodman said. “I’ve spoken with the university and they have an acceptable solution. I’m going to let the president’s office issue a statement.”
Tracy Greene, university counsel, said Wednesday that she had been too busy since April 1 to grant an interview with The Bulletin. She also declined to respond to a question about whether the Faculty Senate is subject to KOMA or KORA.
“At this point in time, I’m not aware of any pending legal action,” Greene said. “I don’t have any further comments.”
Neither Greene nor Lane attend Faculty Senate meetings unless they are invited. By policy, according to Foyle, the meetings are open to the public. He also said, however, that secret ballots are provided for in the senate’s constitution.