Tag Archives: Kansas state government

Articles about Kansas, its government, and public policy in Kansas.

Kansas Supreme Court: Making law, part 3

Do the justices on the Kansas Supreme Court make new law? Yes, and here is another example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one case:2

May a convicted criminal defendant pursue a legal malpractice action against this criminal-defense attorney without first obtaining any post-conviction relief? No, he may not, the Kansas Supreme Court held in Canaan v. Bartee, adopting what is known as the “exoneration rule.” In so holding, the Kansas Supreme Court acknowledged that it was making law. The Canaan court said that “Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas.” The court discussed earlier Kansas cases and concluded that they did not resolve the issue: “Thus, we are left to decide whether we will apply the exoneration rule in legal malpractice actions in Kansas.”

The Canaan court reviewed decisions from courts around the country and noted that most adopted the exoneration rule but some did not. The court also summarized what it candidly called “Policy Reasons Behind the Exoneration Rule.” The Canaan court’s punchline was: “After consideration of these authorities, the varying policy justifications, and the shortcomings of the various approaches, we find the majority view persuasive. We hold that before Canaan may sue his attorneys for legal malpractice he must obtain postconviction relief.”

Who considered “varying policy justifications” in deciding what Kansas law should be? Was it the Kansas Legislature? No, it was the judges on the Kansas Supreme Court did. As in all the examples discussed above, when it comes to the exoneration rule Kansas law is what it is because high court judges chose for that to be law based on what they considered “persuasive.” (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Making law, part 2

Do the justices on the Kansas Supreme Court make new law? Yes, and here is an example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one example:2

Does the state have a legal duty to control the conduct of parolees to prevent harm to other persons or property? When the Kansas Supreme Court confronted this question in Schmidt v. HTG, Inc., it noted a split of authority in other states. For example, a Washington court held that, yes, “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship” and this had the effect of imposing liability on the state. However, the Kansas Supreme Court “reject[ed]” this rule and said “The better-reasoned and more logical approach is that taken in [a Virginia case] which held that state parole officers did not take charge” of a parolee in the relevant sense.

So Kansas law on this topic … was made, not by the legislative or executive branches, but by the judges on the Kansas Supreme Court. In Schmidt, … the lawmaking judges did not pretend that they were compelled by the legislature or anyone else to choose one possible legal rule over another possible legal rule. Instead, the judges decided which view was “better-reasoned” and then made that view the law. (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Selecting Judges

While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.2

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

(In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three. This process gives members of the state’s bar tremendous power in selecting judges.)

By the way: For those who criticize the support for judicial selection reform as partisan politics — since Kansas has a conservative governor — remember this: When Professor Ware first sounded the need for judicial selection reform, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have approved any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Ware, Stephen J. Selection to the Kansas Supreme Court. Federalist Society for Law and Public Policy Studies. Available at www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.

From Wichita Pachyderm: Kansas House candidates

Voice for Liberty radio logo square 02 155x116From the Wichita Pachyderm Club this week: Republican candidates for the Kansas House of Representatives participated in a candidate forum. This is an audio presentation recorded on June 17, 2016.

Participating candidates:

In Kansas House District 87: Jeremy Alessi and Roger Elliott (district map)

In Kansas House District 91: Greg Lakin and J.C. Moore (district map)

In Kansas House District 94: Scott Anderson and Leo Delperdang (district map)

A Kansas school superintendent writes about school finance

A Kansas school superintendent explains school financing, but leaves out a large portion of the funds that flow to his district.

Steve Splichal, the superintendent of the Eudora Public School District, writes a blog in which he explained Kansas school financing. In one post he wrote this:

The general fund is largely made up from state funding called Base State Aid Per Pupil, or BSAPP. In 2008, the BSAPP reached it’s highest level of $4,400. As a result of funding cuts made during the Great Recession, the BSAPP was reduced dramatically. The Governor’s allotment (a cut of $42 in the BSAPP) lowered the BSAPP to $3,810. This is just about the same amount school district’s received in 2000. To put this in perspective, if the BSAPP had just maintained the rate of inflation, we would have a BSAPP of about $6,059.1

For the school year ending in 2014, which is the last before a change in the way state funding was accounted for, Eudora schools received $7,651 per student from the state.2 This is at a time the Eudora superintendent says base state aid is $3,810.

Kansas school spending per student, ratio of state aid per pupil to base state aid per pupil, 2014
Kansas school spending per student, ratio of state aid per pupil to base state aid per pupil, 2014
The superintendent’s article doesn’t mention this. Leaving out funding arising from weightings is a common mistake, or in some cases, a deliberate deception. The Kansas school finance formula used through the fiscal 2015 school year started with base state aid and added weightings to determine the aid a school district would receive. These weightings are substantial. In 2014, because of weightings, total state funding was 1.85 times base state aid.3

To his credit, the Eudora superintendent has a page explaining that the Kansas school finance formula — before the block grants — had weightings.4 But while lamenting the low level of base state aid, he never explained that his district received an additional 100.8 percent of base aid because of these weightings. Now the formula is gone, but the weightings are baked into the block grants that districts receive.

Let’s be charitable of the superintendent’s motives and attribute this to a forgetful and innocent oversight rather than deception. But I’m not going to forgive the superintendent for his errors in English usage.


Notes

  1. Splichal, Steve. *General Fund and BSAPP.* Eudora Rocks! A blog by Superintendent of Schools Steve Splichal. January 19, 2015. Available at eudorarocks.org/general-fund-and-bsapp/.
  2. Kansas State Department of Education. School finance data warehouse. Available at www.ksde.org/Portals/0/School%20Finance/data_warehouse/total_expenditures/d0491exp.pdf.
  3. Weeks, Bob. Kansas school weightings and effects on state aid. Voice for Liberty. Available at wichitaliberty.org/wichita-kansas-schools/kansas-school-weightings-and-effects-on-state-aid/.
  4. Splichal, Steve. Kansas School Finance Formula. Eudora Rocks! A blog by Superintendent of Schools Steve Splichal. January 19, 2015. Available at eudorarocks.org/kansas-school-finance-formula/.

A plea to a legislator regarding Kansas schools

On Facebook, a citizen makes an appeal to her cousin, who is a member of the Kansas Legislature.

What should we do regarding the school funding “crisis” in Kansas? One citizen made an appeal to her cousin — a member of the Kansas Legislature — through Facebook. I’ll omit names to respect the privacy of both parties.

The writer stated, “The children of our state are on the line here. We need our public schools.” Well, children need education, but it doesn’t have to be delivered through public schools.

She also wrote, “This isn’t about politics anymore, it’s about our kids. Kids who have NO chance at attending private schools.” Examining this statement — that there are kids who have no chance at attending a private school — is illuminating. Let’s look at some figures.

For the school year ending in 2015, Kansas State Department of Education reports that Kansas schools spent a total of $13,124 per student. Of that, $8,567 was state aid, $1,101 was federal aid, and $3,469 was from local revenue.1

Now, what does a private school cost? Considering schools not affiliated with a church — although some of these provide a classical Christian education — there are some that cost less than total spending, and even less than just the Kansas state aid per pupil.2

So the writer might be surprised to learn that the taxpayers of the State of Kansas are already paying more than some private school prices. If the state would be willing to let parents spend these funds at schools of their choice, then any Kansas child would be able to afford a private school education. This could be accomplished through tax credit scholarships, vouchers, or education savings accounts. Kansas does, in fact, have a tax credit scholarship program, but it is limited — crippled, I would say — and the Kansas public school establishment fights against it.

Kansas students compared to national. Click for larger.
Kansas students compared to national. Click for larger.
The writer pleaded this: “Needy kids who have the RIGHT to a free and good public education.” I would refer the writer to my article Kansas NAEP scores for 2015 and ask her to take note of the performance of black and Hispanic students in Kansas. For example, 42 percent of Kansas white students are proficient in reading at grade 4. For black students, it’s 15 percent. Are these black students receiving a “good” public education? Of course not. And is there any amount of additional spending that will correct this? If the money is spent through the existing school system the answer is: No, probably not. At least considering any additional sums that are within the realm of political possibility.

There are school reforms available in other states that have found to be very helpful to black and Hispanic students. The Kansas public school establishment fights to keep these reforms out of Kansas.

In making her plea for additional school spending, the writer pleads to her legislator cousin, “I know you have a wonderful, giving heart.” But when legislators vote to spend funds for any purpose, they aren’t giving from their heart. They’re simply using the power of government to transfer money from one person to another. There’s nothing wonderful about that.


Notes

  1. Kansas State Department of Education. Total Expenditures by District, Entire State. Available at www.ksde.org/Portals/0/School%20Finance/data_warehouse/total_expenditures/d0Stateexp.pdf.
  2. For example, see Classical School of Wichita at around $6,000 per year, Cair Paravel Latin School in Topeka at around $7,000 to $8,000 per year, and the Independent School in Wichita from $10,000 to $10,600 per year.

KPERS payments and Kansas schools

What is the situation with KPERS contributions made on behalf of Kansas teachers?

A member of the Kansas State Board of Education has written an article that has received widespread attention. But the member, Jim Porter, is wrong on several accounts.

In his article,1 Porter wrote this:

Deception #2 – Until recently the state contribution to the Kansas Public Employees Retirement System (KPERS) was sent directly to KPERS. Now the funds are transferred to the public school account and then transferred to KPERS on the same day. Again, this was lauded as an increase to public school funding even though it was the same amount of money with just an additional transfer from the State of Kansas to the school to KEPRS.

This expresses a standard argument of Kansas public school spending advocates, which is that because of a change in the way teacher retirement funds (KPERS contributions) are handled, it looks like the state is spending more on schools, when in fact it is not.

In response, Kansas Policy Institute noted this:2

Jim Porter’s Deception #2 – According to Dale Dennis, KPERS funding was last sent directly to KPERS in 2004; it has since been sent directly to school districts included in reported school funding totals. Again, Mr. Porter doesn’t define “recently” but most people would take it to mean within the time frame he references (the Brownback administration) and that clearly is not the case.

Here, Dale Dennis3 contradicts Porter.

Wichita Public Schools, State Revenue by Source, KPERS ContributionsEven through Dennis is the state’s top education finance official, we don’t have to rely only on him to illustrate Porter’s error. Information from the Wichita public school district4 shows the same. Here I’ve plotted the funding sent by the state of Kansas to USD 259 for KPERS contributions. As Dennis indicated, in 2005 the Wichita school districts started receiving money from the state for KPERS. Prior to that year it received none.

Trabert’s article explains other ways in which Porter is wrong. I have to wonder what is the underlying reason for Porter writing things like this. Is he being told incorrect information or is he simply lying?


Notes

  1. Jim Porter for Kansas State Board of Education – District 9 Facebook post. Available at www.facebook.com/JimPorterKSBOE9/posts/1001536676582800.
  2. Trabert, Dave. State school board member should practice what he preaches. Available at kansaspolicy.org/state-school-board-member-practice-preaches/.
  3. Dale Dennis is Deputy Commissioner at Kansas State Department of Education and head of Fiscal and Administrative Services.
  4. USD 259 Comprehensive Annual Financial Report for 2015, State Revenue by Source, Governmental Funds, and USD 259 Comprehensive Annual Financial Report for 2007, State Revenue by Source, Governmental Funds.

WichitaLiberty.TV: Charter schools in Kansas, and a victory for speech and association

In this episode of WichitaLiberty.TV: Kansas has essentially no charter schools. Here’s why we need them. AFP Foundation scores a victory for free speech and association. View below, or click here to view at YouTube. Episode 120, broadcast June 5, 2016.

Shownotes

Kansas senate candidate forum

Voice for Liberty Radio 150x150From the Wichita Pachyderm Club this week: A candidate forum for Republican Candidates for Kansas Senate.

For Kansas Senate District 27, the candidates are Gene Suellentrop and Lori Graham. For Kansas Senate District 31, the candidates are Carolyn McGinn and Renee Erickson. This is an audio presentation recorded June 3, 2016.

District 27 is Sedgwick County: Cities: Andale, Colwich, Goddard(part), Maize(part) and Wichita(part); Townships: Attica(part), Delano(part), Park(part), Sherman and Union. A map is here.

District 31 is Harvey County (all), Sedgwick County: Cities: Bel Aire(part), Bentley, Kechi(part), Maize(part), Mount Hope, Park City, Sedgwick, Valley Center and Wichita(part); Townships: Eagle, Grant, Greeley, Kechi(part), part), Park(part) and Valley Center. A map is here.

Campaign websites are here:

Wichita student/teacher ratios

Despite years of purported budget cuts, the Wichita public school district has been able to improve its student/teacher ratios.

When discussing school funding, there is controversy over how spending should be measured. What funds are included? Is KPERS included? Should we adjust for enrollment and inflation? What about bond and interest funds and capital outlay?

The largest expenditures of schools — some 80 percent nationwide — is personnel costs. In Kansas, and Wichita in particular, we’re told that budget cuts are causing school class sizes to increase.

When we look at numbers, we see that the Wichita school district has been able to reduce its student/teacher ratios substantially over the last ten years. (Student/teacher ratio is not the same statistic as class size.) There have been a few ups and downs along the way, but for all three school levels, the ratios are lower than they were ten years ago, and by substantial margins.

This means that Wichita schools have been able to increase employment of teachers at a faster rate than enrollment has risen.

So however spending is categorized in funds, whether KPERS contributions are included or not, whether the funding comes from state or local sources, whether spending is adjusted for inflation, the Wichita school district has been able to improve its student/teacher ratios.

Data is from USD 259 Comprehensive Annual Financial Report for 2015, Miscellaneous Statistics, page 122, and CAFR from other years.

Wichita Public School District, Student Teacher Ratios, through 2015
Wichita Public School District, Student Teacher Ratios, through 2015

Kansas state school board member should practice what he preaches

By Dave Trabert, Kansas Policy Institute.

District 9 Kansas State School Board member Jim Porter published the following piece outlining what he considers to be deceptive statements about school funding and state taxes. He urges political leaders to “tell the whole story” but doesn’t practice what he preaches, as we found a dozen deceptive statements in his piece.

We are consistently hearing from those political leaders who are resisting what many of us consider to be the adequate funding of education that Schools are receiving more state support than ever and that support is increasing every year. Typically they say that people need to know the facts. Well, that is part of the story and although not a false statement it is certainly deceptive. I will make an attempt to explain the part of the story that they are not telling.

Continue reading at Kansas Policy Institute.

HB 2615 is a Bi-Partisan Healthcare Solution that Governor Sam Brownback should Support

By Andrew Brown, Foundation for Government Accountability

This site recently published an extensive critique of HB 2615, a bill that would protect doctors and health care professionals providing free charity care and reward them with a minor licensing incentive, and the author encouraged Gov. Brownback to veto the bill. Mr. Weeks has graciously allowed me, as a supporter who worked on behalf of HB 2615, to issue a response to his article. I truly appreciate the opportunity to present another side.

I agree that we do need to reconsider and reform occupational licensure across the board and we absolutely should expect medical professionals to stay current in their field. And while Continuing Medical Education credits are one way, they aren’t the only way to achieve that goal. In fact, Kansas already allows doctors to receive CME credits for a range of non-educational activities.

What’s more important though is the stifling effects abusive medical malpractice lawsuits which often benefit lawyers more than patients can have on the amount of free care doctors and health care professionals are willing to give. This means doctors and others offer less charity than they otherwise would while our low-income neighbors struggle to get access to the health care services they need. HB 2615 seeks to change this by reducing government barriers and freeing medical professionals to provide high-quality care to those who need it most.

HB 2615 doesn’t increase regulations on medical professionals, but eases the burden of existing continuing education regulations and rewards them for giving their time and talents to voluntarily serve those who can’t afford care. It also extends liability protections provided by the Kansas Tort Claims Act to medical professionals who choose to volunteer serving those in need so that the fear of a frivolous lawsuit doesn’t stand in the way of doing good.

Although Kansas currently requires physicians to participate in 50 hours of continuing medical education annually (which they often pay for out of their own pockets), the law divides continuing education hours into two categories.

Category I hours are the kind we typically think of when it comes to continuing education — the structured, academic lectures or workshops where physicians get up to speed on the latest medical research and techniques. 1 Every Kansas physician is required to earn 20 hours of Category I credit each year. 2 This doesn’t change with HB 2615.

The remaining 30 hours, then, may be earned from Category II, which is considerably more flexible. 3 A physician can earn Category II hours in a number of ways like “participating in journal clubs,” having “patient-centered discussions with other health care practitioners,” and (my personal favorite) “using searchable electronic databases in connection with patient care activities.” 4 The hours that physicians would earn for charitable care provided under HB 2615 fall under Category II, meaning that they will still have to earn the same 20 hours of critical Category I hours in order to maintain licensure. If we allow physicians to earn Category II credits for writing journal articles or Googling a patient’s symptoms, why shouldn’t we reward them with a few Category II hours for voluntarily providing a child with an inhaler to provide relief from his asthma symptoms, or treating a mother’s high blood pressure?

HB 2615 is a proven bi-partisan solution that works to provide care to our friends and neighbors in need by reducing regulatory barriers and unleashing the power of charity to immediately improve access to quality medical care. In 1993, the state of Florida instituted the nation’s first volunteer health services program, which served as the model for HB 2615. Since that time, volunteers in the Sunshine State have provided more than $2.8 BILLION in care to those in need. Each year, nearly 500,000 free patient visits are provided by the state’s top medical professionals valued at more than $300 million. 5 All this happened not through a government program, but because the government recognized that the local community was better equipped to handle a problem, so it got out of the way.

While the data is impressive, HB 2615 is about changing lives. Recently, I had the privilege of speaking with a doctor in Orlando who has dedicated her career to providing volunteer medical services. She told me a powerful story of a truck driver who lost his job because of severe diabetes. Since he was unable to work, he did not have insurance to get the care he needed to get his diabetes under control. Fortunately, he lived in the community where this doctor worked and he was able to get the treatment and care he needed. Eventually, his health improved, which allowed him to go back to work. Thanks to the efforts of this doctor and the volunteer health services program, this man is now working, providing for his family, and has health insurance coverage so that he can stay healthy and working. HB 2615 would bring more stories like this to Kansas.

If Governor Brownback wants to chalk up another win for individual liberty, signing HB 2615 is the best way to do it. This action would send a message that Kansas not only trusts its medical professionals to care for the needs of medically indigent citizens, but that they are better able to provide this care than any government program or insurance company could ever dream.

Andrew Brown is an attorney and Senior Fellow with the Foundation for Government Accountability.


Notes

  1. K.A.R. 100-15- 4(b)
  2. K.A.R. 100-15- 5(a)(1)(A)
  3. Id.
  4. K.A.R. 100-15- 4(c)
  5. Patrick Ishmael and Jonathan Ingram, “Volunteer Care: Affordable Health care without Growing Government,” The Foundation for Government Accountability, Oct. 27, 2015, available at thefga.org/download/Volunteer-Care-Research-Paper.pdf.

Kansas economic development programs

Explaining common economic development programs in Kansas.

TIF projects: Some background
Tax increment financing disrupts the usual flow of tax dollars, routing funds away from cash-strapped cities, counties, and schools back to the TIF-financed development. TIF creates distortions in the way cities develop, and researchers find that the use of TIF means lower economic growth. Click here.

Tax increment financing (TIF) resources
Resources on tax increment financing (TIF) districts. Click here.

STAR bonds in Kansas
The Kansas STAR bonds program provides a mechanism for spending by autopilot, without specific appropriation by the legislature. Click here.

Industrial Revenue Bonds in Kansas
Industrial Revenue Bonds are a mechanism that Kansas cities and counties use to allow companies to avoid paying property and sales taxes. Click here.

Community Improvement Districts in Kansas
In Kansas Community Improvement Districts, merchants charge additional sales tax for the benefit of the property owners, instead of the general public. Click here.

In Kansas, PEAK has a leak
A Kansas economic development incentive program is pitched as being self-funded, but is probably a drain on the state treasure nonetheless. Click here.

Government intervention may produce unwanted incentives
A Kansas economic development incentive program has the potential to alter hiring practices for reasons not related to applicants’ job qualifications. Click here.

City of Wichita
City of Wichita’s economic development page is here. The Sedgwick County/City of Wichita Economic Development Policy is here.

State of Kansas
A page at the Kansas Department of Commerce with incentive programs is here.

Under Goossen, Left’s favorite expert, Kansas was admonished by Securities and Exchange Commission

The State of Kansas was ordered to take remedial action to correct material omissions in the state’s financial statements prepared under the leadership of Duane Goossen.

During the administration of Governor Mark Parkinson, the State of Kansas issued eight series of bonds raising $273 million. Regarding these, the U.S. Securities and Exchange Commission has determined that the state failed to adequately inform investors of significant, material, negative information.

In a nutshell, according to the SEC: The Kansas Public Employee Retirement System (KPERS) was in terrible financial condition compared to other states, and Kansas did not adequately disclose that to potential bond buyers. That violated the Securities Act. In 2011 Kansas implemented reforms to the SEC’s satisfaction.

Duane Goossen biography
Duane Goossen biography
Of interest to current Kansas public affairs is that the head of the Kansas Department of Administration at the time the SEC found these violations was Duane Goossen. In its findings, the SEC specifically criticized the Department of Administration for its preparation of financial statements included in bond offerings — statements that were missing materially important, and negative, information.

Since his departure from Kansas government, Goossen has remained active in shaping Kansas policy, first as vice president for fiscal and health policy at Kansas Health Institute. 1 In 2015 Goossen joined Kansas Center for Economic Growth as Senior Fellow. 2 In announcing Goossen’s appointment, KCEG executive director Annie McKay noted his “wealth of expertise and knowledge.”

KCEG advocates for more taxes on Kansans, with the Goossen announcement mentioning “unprecedented and unaffordable tax cuts.” Goossen added he was excited to continue “contributing to the conversation across Kansas about the importance of budget and tax policy and the consequences of drastic tax cuts on everyday investments critical to Kansans.”

It’s ironic that Goossen mentioned “investments,” as we now know that under his leadership Kansas violated Sections 17(a)(2) and 17(a)(3) of the Securities Act, materially misleading bond investors while other states made full disclosure.

While critics of current Kansas government — including Goossen 3 — use KPERS underfunding as evidence of failure, this incident shows that KPERS has had funding problems for a long time, under leadership of both parties, and of both conservatives and moderates.

The SEC findings

According to a press release from the Securities and Exchange Commission, the State of Kansas “failed to disclose that the state’s pension system was significantly underfunded, and the unfunded pension liability created a repayment risk for investors in those bonds.” 4

The nature of the SEC’s inquiry involved “the disclosures surrounding eight bond offerings through which Kansas raised $273 million in 2009 and 2010.” 5

In its order, the SEC found: “The failure to disclose this material information in the Official Statements resulted from insufficient procedures and poor communications between KDFA and the Kansas Department of Administration (“KDA”), which provided information to KDFA for inclusion in the Official Statements, including preparing the State’s financial statements that were included as part of the Official Statements.6 (emphasis added)

The SEC also found that Kansas was an outlier among the states in failing to disclose negative information: “Kansas’s practice of not disclosing the underfunded status of KPERS became increasingly inconsistent with the practice of most states issuing municipal securities, which generally provided disclosure in their CAFRs or the body of their Official Statements regarding the financial health of their pension funds. By 2008, with the exception of Kansas, the overwhelming majority of the Official Statements for state-level bond issuances at a minimum disclosed the UAAL or funded ratios of the associated state-level pension plans, particularly if those plans were significantly underfunded.”

Prior to a new issue of bonds in November 2011, the SEC found that the State of Kansas instituted satisfactory policies and procedures regarding disclosure of material information.

  1. Kansas Health Institute. Budget director leaving for new post. Available at www.khi.org/news/article/budget-director-leaving-new-post.
  2. Kansas Center for Economic Growth. Duane Goossen joins Kansas Center for Economic Growth. Available at realprosperityks.com/media/press-releases/duane-goossen-joins-kansas-center-for-economic-growth/.
  3. Duane Goossen. The FY15 Budget Is Not Fixed Yet. Kansas Center for Economic Growth. Available at realprosperityks.com/duane-goossen-fy15-budget-fixed-yet/.
  4. SEC.gov. SEC Charges Kansas for Understating Municipal Bond Exposure to Unfunded Pension Liability. Sec.gov. Available at www.sec.gov/News/PressRelease/Detail/PressRelease/1370542629913.
  5. ibid.
  6. SEC. Administrative proceeding file no. 3-16009. Order instituting cease-and desist proceedings pursuant to section 8a of the Securities Act of 1933, making findings, and imposing a cease-and-desist Order. Available at www.sec.gov/litigation/admin/2014/33-9629.pdf.

Kansas state tax collections, compared

An interactive visualization of tax collections by state governments shows Kansas distinguished from some of its neighbors.

Per-capita tax collections, Kansas and nearby states. Click for larger.
Per-capita tax collections, Kansas and nearby states. Click for larger.
As shown in the nearby illustration, Kansas collects more taxes than some nearby states, on a per-person basis. This information should guide Kansas legislators and policymakers and Kansas prepares to balance its budget. Does Kansas want to further separate itself from its neighbors with even higher taxes?

The values are from the United States Census Bureau, and are for tax collections by the state only. Local governmental entities like cities, counties, townships, improvement districts, cemetery districts, library districts, drainage districts, watershed districts, and school districts are not included.

You may use this interactive visualziaton to prepare your own analysis and illustrations. Of particular interest is the “State Total” tab. Here you can select a number of states and compare their tax burdens. (Probably three or four states at a time is the practical limit.)

Data is as collected from the United States Census Bureau, Annual Survey of State Government Tax Collections, and not adjusted for inflation. Visualization created using Tableau Public. Click here to access the visualization.

Using the visualization. Click for larger.
Using the visualization. Click for larger.

Kansas continues to snub school choice reform that helps the most vulnerable schoolchildren

Charter schools benefit minority and poor children, yet Kansas does not leverage their benefits, despite having a pressing need to boost the prospects of these children.

The CREDO studies at Stanford University are often cited as the most comprehensive and reliable research on charter schools. Opponents of charter school focus on a finding that some charter schools are worse than local traditional public schools, the figures being 19 percent for reading and 31 percent for math. Because of this, opponents of charter schools feel justified in keeping them out of Kansas. (Kansas does allow charter schools, but the law is so stacked against charter schools that there are very few, effectively none.)

The findings from the Stanford CREDO National Charter School Study from 2013 contain much more information than this simple conclusion. In particular, here is a partial quote from its executive summary: “Enrollment and persistence in charter schools is especially helpful for some students, particularly students in poverty [and] black students …”

Why would we not want to experience these benefits, especially for poor and minority students?

This is important. While the Kansas public education establishment touts the state’s relatively high performance on national tests, when results are analyzed closely, we see some things that should cause all Kansans to embrace whatever we can do to correct this.

Kansas students compared to national. Click for larger.
Kansas students compared to national. Click for larger.
Nearby is a chart of NAEP scores for Kansas and national public schools. It is an example from a visualization of NAEP scores that you may use yourself. I’ve circled some troubling results. An example of something that must be changed is this: For grade four math, 14 percent of Kansas black students are at the level “proficient” or better. For national public schools, the figure for the same population subgroup is 19 percent.

Following, some findings from the CREDO study that show how charter schools help precisely the students that need the most help. But the Kansas school establishment does not want charter schools, and so far Kansas Republicans — including Governor Brownback and legislative leaders — have been unwilling to help the most vulnerable Kansas schoolchildren.

“The 27 states in our study provide the widest angle view of the charter school sector to date. Across multiple measures, the students in these charter schools have shown both improved quality over the results from 2009 and an upward trend in their performance over the past five years.”

“The average charter school student now gains an additional 8 days of learning each year in reading, compared to the loss of 7 days each year reported in 2009. In math, charter students in 2009 posted 22 fewer days of learning; now that gap is closed so their learning each year is on par with their peers in traditional public schools.”

“Looking back to the demographics of the charter school sector in the 27 states, charter school enrollment has expanded among students in poverty, black students, and Hispanic students. These are precisely the students that, on average, find better outcomes in charter schools. These findings lend support to the education and social policies that focus on education as the mechanism to improve life chances for historically underserved students. Charter schools are especially beneficial learning environments for these students, as the following graphics illustrate in greater detail.”

“Enrollment and persistence in charter schools is especially helpful for some students, particularly students in poverty, black students, and English language learners all of whom post significantly higher learning gains in both reading and math. Hispanic students are on par with their TPS peers in both reading and math. For students with multiple designations (such as being black and in poverty), the impacts of charter schooling are especially positive and noteworthy.”

Economic indicators in the states

During this century the Kansas economy has not kept up with the national economy and most neighboring states.

The Federal Reserve Bank of Philadelphia calculates two indexes that track and forecast economic activity in the states and the country as a whole.

Economic Indicators in the States ExampleThe coincident index is a measure of current and past economic activity for each state. This index includes four indicators: nonfarm payroll employment, the unemployment rate, average hours worked in manufacturing, and wage and salary disbursements deflated by the consumer price index (U.S. city average). July 1992 is given the value 100. 1

The leading index predicts the six-month growth rate of the state’s coincident index. In addition to the coincident index, “the models include other variables that lead the economy: state-level housing permits (1 to 4 units), state initial unemployment insurance claims, delivery times from the Institute for Supply Management (ISM) manufacturing survey, and the interest rate spread between the 10-year Treasury bond and the 3-month Treasury bill.” 2

Positive values mean the coincident index is expected to rise in the future six months, while negative values mean it is expected to fall.

I’ve created an interactive visualization of these two indexes. Examples appear nearby. Click here to open the visualization in a new window.

  1. Federal Reserve Bank of Philadelphia. State Coincident Indexes – a monthly coincident index for each of the 50 states. Philadelphiafed.org. Available at www.philadelphiafed.org/research-and-data/regional-economy/indexes/coincident.
  2. Federal Reserve Bank of Philadelphia. State Leading Indexes – current & future economic situation of 50 states with special coverage of Pennsylvania, New Jersey, & Delaware. Philadelphiafed.org. Available at www.philadelphiafed.org/research-and-data/regional-economy/indexes/leading.

Rich States, Poor States, 2106 edition

In Rich States, Poor States, Kansas continues with middle-of-the-pack performance, and fell sharply in the forward-looking forecast.

In the 2016 edition of Rich States, Poor States, Utah continues its streak at the top of Economic Outlook Ranking, meaning that the state is poised for growth and prosperity. Kansas continues with middle-of-the-pack performance rankings, and fell sharply in the forward-looking forecast.

Rich States, Poor States is produced by American Legislative Exchange Council. The authors are economist Dr. Arthur B. Laffer, Stephen Moore, who is Distinguished Visiting Fellow, Project for Economic Growth at The Heritage Foundation, and Jonathan Williams, who is vice president for the Center for State Fiscal Reform at ALEC.

Rich States, Poor States computes two measures for each state. The first is the Economic Performance Ranking, described as “a backward-looking measure based on a state’s performance on three important variables: State Gross Domestic Product, Absolute Domestic Migration, and Non-Farm Payroll Employment — all of which are highly influenced by state policy.” The process looks at the past ten years.

Looking forward, there is the Economic Outlook Ranking, “a forecast based on a state’s current standing in 15 state policy variables. Each of these factors is influenced directly by state lawmakers through the legislative process. Generally speaking, states that spend less — especially on income transfer programs, and states that tax less — particularly on productive activities such as working or investing — experience higher growth rates than states that tax and spend more.”

For economic performance, Kansas is twenty-seventh. That’s up from twenty-eighth last year.

In this year’s compilation for economic outlook, Kansas ranks twenty-seventh, down from eighteenth last year and fifteenth the year before. In 2008, the first year for this measure, Kansas was twenty-ninth.

Kansas compared to other states

Kansas and nearby states Economic Outlook Ranking. Click for larger version.
Kansas and nearby states Economic Outlook Ranking. Click for larger version.
A nearby chart shows the Economic Outlook Ranking for Kansas and some nearby states, shown as a trend over time since 2008. The peak of Kansas in 2013 is evident, as is the decline since then.

Why Kansas fell

Rich States Poor States Kansas trends 2016 aloneKansas fell in the Economic Outlook Ranking from 2013 to 2016. To investigate why, I gathered data for Kansas from 2008 to 2016. The nearby table shows the results for 2016 and the rank among the states, with the trend since 2008 shown. A rank of one is the best ranking, so for the trend lines, an upward slope means a decline in ranking, meaning the state is performing worse.

There are several areas that may account for the difference.

The most notable change is in the measure “Recently Legislated Tax Changes (per $1,000 of personal income)” Kansas fell forth positions in rank. By this measure, Kansas added $2.67 in taxes per $1,000 of personal income, which ranked forty-seventh among the states. This is a large change in a negative direction, as Kansas had ranked seventh the year before.

In “Property Tax Burden (per $1,000 of personal income)” Kansas improved one position in the rankings, despite the tax burden rising.

In “Sales Tax Burden (per $1,000 of personal income)” Kansas fell one spot in rank. The burden is calculated proportional to personal income. The sales tax burden, as measured this way, fell slightly in Kansas, but the ranking fell in comparison to other states. (Although the Kansas sales tax rate rose in 2015, this report uses data from 2013, which is the most recent data available from the U.S. Census Bureau. It’s likely that the 2015 sales tax hike will increase this burden, but whether the ranking changes depends on actions in other states.)

Kansas improved six rank positions for “Debt Service as a Share of Tax Revenue.”

Kansas remains one of the states with the most public employees, with 672 full-time equivalent employees per 10,000 population. This ranks forty-eighth among the states.

Kansas has no tax and spending limits, which is a disadvantage compared to other states. These limitations could be in the form of an expenditure limit, laws requiring voter approval of tax increases, or supermajority requirements in the legislature to pass tax increases.

How valuable is the ranking?

Correlation of ALEC-Laffer state policy ranks and state economic performance
Correlation of ALEC-Laffer state policy ranks and state economic performance
After the 2012 rankings were computed, ALEC looked retrospectively at rankings compared to actual performance. The nearby chart shows the correlation of ALEC-Laffer state policy ranks and state economic performance. In its discussion, ALEC concluded:

There is a distinctly positive relationship between the Rich States, Poor States’ economic outlook rankings and current and subsequent state economic health.

The formal correlation is not perfect (i.e., it is not equal to 100 percent) because there are other factors that affect a state’s economic prospects. All economists would concede this obvious point. However, the ALEC-Laffer rankings alone have a 25 to 40 percent correlation with state performance rankings. This is a very high percentage for a single variable considering the multiplicity of idiosyncratic factors that affect growth in each state — resource endowments, access to transportation, ports and other marketplaces, etc.

Rich States, Poor States compilation for Kansas. Click for larger version.
Rich States, Poor States compilation for Kansas. Click for larger version.

Governor Brownback steps up for property rights

Today Kansas Governor Sam Brownback vetoed Senate Bill 338. As explained by John Todd, this bill unnecessarily and dangerously increased the power of cities over private property rights. Thank you to the governor for understanding the harm of this bill and acting appropriately. Most of all, thank you to John Todd for recognizing the bill’s danger, for his committee testimony, and for his tireless work in helping inform the governor and his staff about this bill.

Following, the governor’s veto message:

The right to private property serves as a central pillar of the American constitutional tradition. It has long been considered essential to our basic understanding of civil and political rights. Property rights serve as a foundation to our most basic personal liberties. One of government’s primary purposes is to protect the property rights of individuals.

The purpose of Senate Bill 338, to help create safer communities, is laudable. However, in this noble attempt, the statute as written takes a step too far. The broad definition of blighted or abandoned property would grant a nearly unrestrained power to municipalities to craft zoning laws and codes that could unjustly deprive citizens of their property rights. The process of granting private organizations the ability to petition the courts for temporary and then permanent ownership of the property of another is rife with potential problems.

Throughout the country, we have seen serious abuse where government has broadened the scope of eminent domain, especially when private development is involved. The use of eminent domain for private economic development should be limited in use, not expanded. Senate Bill 338 opens the door for serious abuse in Kansas. Governmental authority to take property from one private citizen and give it to another private citizen should be limited, but this bill would have the effect of expanding such authority without adequate safeguards.

Kansans from across the political spectrum contacted me to discuss their concerns that this bill will disparately impact low income and minority neighborhoods. The potential for abuse of this new statutory process cannot be ignored. Government should protect property rights and ensure that the less advantaged are not denied the liberty to which every citizen is entitled.

There is a need to address the ability of municipalities and local communities to effectively maintain neighborhoods for public safety. However, Senate Bill 338 does much more. Though I am vetoing this bill, I would welcome legislation that empowers local communities to respond to blight and abandoned property that does not open the door to abuse of the fundamental rights of free people.