Kansas education board’s attorney says abstention as substitute for ‘no’ vote an abdication of duty

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Four Republicans sidestepping yes-or-no decisions on key education issues

TOPEKA — Kansas State Board of Education member Michelle Dombrosky abstained rather than cast yes-or-no votes on amendments to teacher licensure requirements, high school graduation standards and a popular program allowing high school students to earn college credit.


Dombrosky, an Olathe Republican who represents 10 school districts in Johnson, Miami and Franklin counties, also declined three times since January to take a position on allocation to local school districts of federal COVID-19 relief funding.

During the initial four months of this year, GOP state Board of Education members Cathy Hopkins of Hays, Dennis Hershberger of Hutchinson and Danny Zeck of Leavenworth abstained at least twice on key policy decisions. Dombrosky took that approach at least six times in that period.

Mark Ferguson, legal counsel to the state Board of Education since 2009, said the flurry of abstentions could be consequential because the tactic might be used to undermine a requirement the state board register at least six votes among the 10 members to take formal action on a motion or resolution.

In February, changes to the state’s teacher licensure requirements were passed with a bipartisan majority on a vote of 6-0-4 as four Republicans abstained.

“My conclusion is an abstention is not really the appropriate vote for a board member who is simply in opposition to a position or a board action,” Ferguson said. “I would go out a little further and say that an abstention — a nonvote — is an abdication of the responsibility to vote or to take a position on a particular issue.”

Ferguson recommended the state Board of Education adopt policy to clarify that an abstention would be recorded as a “no” vote. He said a board committee had engaged in preliminary discussions about policy changes.

The board’s attorney also said abstentions should be reserved for members who decided they had a personal, employment or economic conflict of interest and wanted to be released from a specific debate or decision. Under Kansas law, local school board members with a conflict of interest were allowed to step away from the meeting until conclusion of voting on the issue.

He said questions about abstentions became more prominent after election in 2022 of Republican newcomers Hopkins, Hershberger and Zeck. Each started four-year terms in January.

While Dombrosky led the group with six abstentions on significant final-action votes from January through April, Zeck did so three times and Hopkins and Hershberger did so twice each. These board members also cast abstentions in preliminary votes.

State Board of Education members requested a legal analysis of abstentions as it related to the elected body serving interests of K-12 education statewide, Ferguson said.

“It has been something that has gained some momentum and traction each month that we’ve had new board members,” he said.

Ferguson said there was no obligation for board members to explain votes for or against a measure, which would mirror the process deployed by the Kansas Legislature.

Members of the House and Senate were allowed to publicly declare a conflict of interest and step away from participation in a specific vote. Or, a conflict of interest could be cured by a lawmaker through public disclosure and that individual could choose to vote with colleagues.

The incentive of Republicans to abstain on key education policy and budget votes might be removed in November 2024 when the state Board of Education’s three Democrats and two of the seven Republicans were up for reelection. The board’s majority could shift to the right in January 2025.

The upcoming election cycle would determine the future of Democrats Ann Mah of Topeka, Melanie Haas of Overland Park and Betty Arnold of Wichita as well as GOP members Deena Horst of Salina and Jim McNiece of Wichita.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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