consistent or unconstitutional: analysis of new kansas contract and grant language limiting speech
Post on 05-Apr-2018
212 Views
Preview:
TRANSCRIPT
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 1/9
1200 New York Avenue NW | Suite 700
Washington, DC 20005
202.962.0322
www.councilofnonprofits.org
June 4, 2012
Consistent or Unconstitutional:
Analysis of New Kansas Contract and Grant Language Limiting Speech
This memorandum analyzes whether new language that the State of Kansas is inserting into its
contracts and grants with nonprofit human services providers (and other entities) is consistent
with federal language, or is an unsupportable violation of fundamental rights embedded in the
United States and Kansas Constitutions.
Background
On May 29, 2012, the KHI News Service reported that the Kansas Department of Social andRehabilitation Services (SRS) has started inserting the following language in its contracts with
service providers:
“No funds allowed under this agreement may be expended by the recipient of the grant
to pay, directly or indirectly, any person for influencing or attempting to influence an
officer or employee of any agency, a member, or employee of a member of the United
States Congress or the Kansas Legislature.”
The article quotes an email from an SRS official who offered the following rationale for the new
language:
“It is just good public policy to prohibit the use of taxpayer dollars to lobby the Legislature to
spend even more taxpayer dollars,” she wrote. “That is an abusive practice that leads to other
sorts of inappropriate use of taxpayer funds. And that is the reasoning behind both what SRS is
doing and what the federal government is requiring. I can’t imagine any of our providers not
wanting to comply with federal law and with the requirements of a contract that they have
signed.”
The news article goes on to quote the State official as saying that Kansas plans to include the
new language in all state-administered contracts and grants, not just those at SRS, so
presumably this expansion would include contracts with for-profit businesses and grants to
government entities, including local governments and public universities.
Why It Matters
Before turning to the analysis, it is important to understand what is at stake. A straightforward
reading of the new Kansas contract and grant language reveals that the language would apply
to any activity that could be interpreted by the State as “influencing or attempting to influence
an officer or employee of any agency” (and because “agency” is undefined, that would include
any federal, state, or local government agency and perhaps any nonprofit “agency”). The new
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 2/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 2
language also will reach any activity that could be interpreted by the State as “influencing or
attempting to influence … any … member, or employee of a member of the United States
Congress or the Kansas Legislature.” Here are some examples of how the new language would
apply:
An entity contracting with the state would violate the new Kansas language by calling, emailing,
or otherwise contacting (“attempting to influence”) any local, state, or federal agency employee
to recommend that a person be assigned to a specific residential care facility or that a client
receive specific services within a program;
An entity with a state grant to provide certain services to children would be prohibited from
advocating on behalf of a child for expanded benefits to which the child is eligible under existing
law;
A nonprofit domestic violence shelter (or food bank or other nonprofit providing services under
contract with the state) would not be able to call a local, state, or federal agency to draw
attention to problems in the administration of programs, point out ways to improve policies to
save taxpayers money, identify people who are ineligible for services, call for additional services
or treatment needed by a vulnerable population, or to report a violation of a law, such as
discriminatory practices by a government agency or even suspected child abuse;
A nonprofit case worker for the developmentally disabled or someone suffering from mental
illness would not be able to contact a local, state, or federal agency to help a client fill out
appropriate paperwork;
A government entity in Kansas receiving a state contract or grant (such as a university, a law
enforcement agency, or public health facility receiving federal pass-through grants) would not
be able to contact other local, state, or federal agencies to accomplish the public’s work;
A state grantee that answers a reporter’s questions about the impact of a governmentaction – whether a human interest story or a tragedy – will, as a result of a published
story, will be said to have “influenced” the action of public official who opens an
investigation or changes priorities of the agency; and
An entity with a state contract or grant would not be able to respond to a request from any
government employee or officer who seeks help in (a) getting assistance for a constituent, (b)
getting assistance for the employee’s or officer’s own relatives or neighbors, or (c) getting
background data to help that employee or officer do their job on behalf of the public.
If the State determines that the contractor or grantee engaged in any of the foregoing or any
other activity that the State believes amounted to “attempting to influence” any governmentemployee or official, then the State could declare a breach of contract and impose a variety of
penalties, including withholding contract payments, cancelling the contract, or banning
the contractor from receiving future contracts. So by doing the job for which it was hired by
the State, an entity could also be accused of breaching its contract and therefore risk not being
paid. A state contractor’s only logical response to any of the preceding examples is to avoid
communicating with federal, state, or local employees or officials out of fear that the official or
employee may be “influenced” directly or indirectly to do his or her job.
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 3/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 3
Analysis
A. The State’s New Language Is Inconsistent with “Similar” Federal Language
An SRS official offered two justifications for the State’s new language, suggesting that it would
simply
(a) “prohibit the use of taxpayer dollars to lobby the Legislature to spend even more taxpayerdollars,” and (b) track federal law and “what the federal government is requiring.” A fair review
of the facts reveals that neither suggestion is true.
This ban of speech goes much further than just lobbying for more money from the Kansas
Legislature. The new State language will prohibit any and all communications that might be
perceived as an attempt to influence not only a member or employee or Congress or the Kansas
Legislature, but also any “officer or employee” of “any agency.” Because “agency” is not
limited in scope, the plain language sweeps in any and all agencies at the federal, state, and
local levels (including all agencies within all Kansas counties, municipalities, school districts, and
special districts). Indeed, because many people often refer to charitable nonprofits as
“agencies,” the language may even reach communications by a contractor to a nonprofit.
Although Kansas might have intended the language to reach only legislative lobbying, it actually
goes much further to ban communications with seemingly countless federal, state, local, and
nonprofit “agencies” and millions of employees of those agencies.
Moreover, contrary to the State’s assertion, this ban on speech goes far beyond federal law and
“what the federal government is requiring.” The new Kansas language – while deceptively
similar to federal language – is wildly divergent. The federal prohibition against using federal
funds to lobby Congress is narrowly focused: “None of the funds made available by this Actshall be used in any way, directly or indirectly, to influence congressional action on any
legislation or appropriation matters pending before the Congress.” See Consolidated
Appropriations Act of 2012 (H.R. 2055) § 8013 (emphasis added). Yet the new Kansas language
does not focus on the action (“congressional action on any legislation or appropriation” actually
“pending before the Congress”), and instead looks at whether the communication might
influence any government employee or official at the local, state, or federal levels (“an officer
or employee of any agency, a member, or employee of a member of the United States
Congress or the Kansas Legislature”). Kansas never connects the “attempt to influence” to
“pending” “legislation or appropriation matters,” or indeed even to any subject matter –
present or future. To put it simply, while federal law focuses on particular congressional action
on pending matters, the Kansas language applies to an endless array of people who might be
influenced or attempted to be influenced regarding anything. Again, that may not be what
Kansas intended, but that is what a plain reading of the new language would produce.
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 4/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 4
B. The State’s New Language Infringes Constitutional Rights
The new Kansas language is fatally flawed because it violates the U.S. and Kansas Constitutions.
1. The language violates the First Amendment.
The new Kansas language effectively imposes a gag order on human service providers
contracting with the State by restricting their rights of free speech and to petition their
government, which are fundamental freedoms imbedded in the First Amendment to the United
States Constitution and Kansas Constitution’s Bill of Rights. Restrictions on those rights must be
narrowly construed. Here Kansas, instead of narrowly tailoring the restriction on using
contractor-earned funds for lobbying for more appropriations on pending matters before
Congress, as federal law does, bans all efforts to “attempt to influence” any level of
government on any topic, now or in the future. Thus, employees, vendors, or others paid
“indirectly” by contract or grant funds would be banned from reporting violations of the law,
advocating for policy improvements that would help disadvantage and protected populations,
and even identifying ways to save taxpayer dollars.
The sweeping language also violates journalists’ First Amendment free press rights to gather
information and report to, and on behalf of, the public. For instance, a government contractor
who answers a reporter’s phone call or email at work and responds to questions about the
impact of a government policy or proposed action – whether a human interest story or a
tragedy – could be accused of “attempting to influence an officer or employee of any [local,
state, or federal] agency.” That simple act would breach the contract, thus allowing the State to
withhold payment for some or all of the work it had performed, cancel the contract, or ban the
contractor from receiving future contracts. Given those outsized penalties, entities in Kansas
with government contracts will instruct all of their employees, board members, volunteers,
outside contractors, sub-grantees, vendors, and others to never talk with another reporter. The
chilling effect will be most severe.
As shown above, the new Kansas language is not limited to efforts to “lobby the Legislature for
more money.” Lobbying for more appropriations certainly would be caught within the trap, but
so would all speech and advocacy efforts by case workers doing their jobs by helping their
clients. Virtually any and all communications, directly and indirectly, with public employees or
officials would raise intolerable risks. At bottom, the only safe behavior that would comply with
the new contract language is to remain silent – a result that is an abrupt affront to the
Constitutions of the United States and Kansas.
2. The language is so vague and ambiguous and overly-broad that it is constitutionally unconscionable.
The new Kansas contract language is so unconstitutionally vague and ambiguous and overly-
broad that it violates the due process clauses in ways rendering the contract language to be
unconscionable.
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 5/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 5
When dealing with the government, a person should not have to guess whether their actions
(or even non-actions) may or may not trigger a loss of their rights. Here, the new Kansas
language is so vague and ambiguous that it forces contractors and grantees to guess how the
State will interpret their actions (and actions by untold others that the contractor or grantee
pays “indirectly”), and so overly-broad that the State can do most anything, thus puttingcontractors and grantees at risk of losing their property rights. To cite just a few examples:
What does “attempt to influence” any government employee mean? The new Kansas contract
language is unlike federal law in that it fails to narrow the concept of “influencing” to specific
pending matters. It is this lack of specificity – the failure to give any guidance as to what
“influencing or attempting to influence” pertains – that a contractor or grantee is left to
speculate as to what is and is not prohibited by the contract language. Also, without a defined
time period (such as the federal law, which is limited to matters currently “pending before the
Congress”), “attempting to influence” untold future events is almost impossible to avoid. For
instance, a nonprofit that does a great job in delivering social services in an innovative way
might inspire (“influence”) a government employee of an agency, the Kansas Legislature, orCongress to replicate the program elsewhere. Being both vague and overly-broad, the
“attempting to influence” any government employee or official language puts a government
contractor in a no-win situation, allowing Kansas to stop paying them, cancelling their contract,
or blacklisting them from future contracts for doing their job well.
What does “directly or indirectly” pay mean? Federal law that places the words “directly or
indirectly” next to the “attempt to influence” to prevent subterfuge in trying to influence
pending legislation and appropriation matters before Congress. Kansas moves the “directly or
indirectly” next to “pay.” The inclusion of the phrase “directly or indirectly” in this context is
exceedingly problematical. How far down the line of “indirectly” pay does liability flow? Just to
the contractor or grantee? If that were the case, then the State could stop with just “directly,”so “indirectly” must mean something. Would a contractor that uses funds to pay for their
employees to get training for providing services need to instruct their employees not to ask any
questions at the training for fear that the questions might “influence” an unknown government
employee in the audience? Do the limitations apply to board members and volunteers? They are
not paid salaries, but might “indirectly” get paid in pizza or cof fee at events and meetings.
Would the restrictions be extended to cover a grantee’s vendors that supply accounting services
or IT services or supplies of papers and ink? Would the grantee now become responsible for the
efforts by their vendors when they “attempt to influence” a government official or employee?
What does “agency” mean? Because it is left undefined, any plain reading naturally would
include any and all government agencies at all levels, including thousands within Kansas alone
when one adds up all of the various agencies within all of Kansas’ counties, cities, towns, school
districts, and special districts. Plus, many people refer to nonprofits as “agencies.” So would a
nonprofit contractor that talks with another nonprofit to make sure a client receives proper
services be guilty of “attempting to influence” another agency?
Making the situation worse, it appears that the State – which is insisting that this vague and
ambiguous language be inserted into future contracts – believes it would determine whether a
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 6/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 6
contractor or grantee somehow violated the very language that is so arbitrary and amorphous.
Having the State insist on including this vague language makes this a one-sided contract of
adhesion that is fundamentally unfair and unenforceable. Having the State then decide
whether there is a breach of its vague language, thus allowing it to not pay on the contract for
services already rendered or cancel the contract, makes this a constitutionally unconscionablecontract.
C. Adding Contract Insult to Ongoing Injury in a State That Already Trails the Nation
An analysis of the new contract language cannot omit scrutiny of Kansas’ existing poor record
of how it treats its nonprofit partners that are providing services on behalf of government. In
2010, the Urban Institute issued a report, Human Service Nonprofits and Government
Collaboration: Findings from the 2010 National Survey of Nonprofit Government Contracting
and Grants, documenting for the first time on a national and state-by-state basis both the
existence and magnitude of problems created by governments contracting with human service
nonprofits. The Urban Institute found that more than half of the nonprofits surveyed reported
problems in each of these five areas: governments (i) failing to pay the full costs of the services
for which they contract, (ii) imposing unnecessarily complex bidding burdens and (iii) reporting
requirements, (iv) changing contract terms in mid-stream, and (v) paying late on their legally-
binding contracts.
As set forth in the attached Urban Institute data, Kansas ranks in the bottom quarter of states
for failing to pay the full costs of services (ranked #13, with #1 being the worst and #51 being
the best) and paying their nonprofit contractors late (ranked #12). According to nearly three
out of five (59 percent) of organizations responding to the survey, Kansas imposes a matchrequirement on government contracts with nonprofits. That “match requirement” essentially
means that instead of the state paying full costs – as it does to for-profit entities – Kansas
requires nonprofits to go out and raise matching funds to do the work for the government.
Similarly, respondents reported that Kansas arbitrarily limits program overhead or
administrative expenses (58 percent), thus forcing the nonprofits to raise money from the
private sector to fund activities that otherwise would be borne by governments. (For
comparison purposes, data for other states and other information can be retrieved from a
dedicated web portal relating to the Government-Nonprofit Contracting Project.)
Most significantly for this analysis, the Urban Institute survey ranked Kansas as the sixth worst
state in changing contract terms in mid-stream. This means “government changes to contracts
and grants after they had been approved,” according to the full Urban Institute report at page
14. Specifically, the report found, “Nonprofits said some government agencies cancelled or
postponed their contracts or grants, cut payments, or made other costly changes.”
The addition of the new constitutionally-challenged contract terms follows the ignoble tradition
in Kansas of abusing the contracting relationship with nonprofit service providers. In stark
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 7/9
National Council of Nonprofits Analysis of New Kansas Contract and Grant Language
Page 7
contrast, when state government officials sat down as partners with nonprofit leaders in
Connecticut, Illinois, Maryland, North Carolina, and Texas – as occurred in 2011 – they started
developing solutions that will improve services for the people who need them most, ensure
that taxpayers receive full value for the programs they are funding, and strengthen
communities. Likewise, a New York working group and a New Jersey Red-Tape ReviewCommission began looking into needed reforms to streamline the interactions between
government, nonprofits, and others. In each of these states, representatives of government
agencies that contract with nonprofit human service providers collaborated with nonprofit
contractors to identify problems and solutions to broken contracting policies, procedures, and
practices. That important work of updating antiquated and broken contracting systems that
hurt taxpayers and others is not done by any means, but at least other states are beginning to
take serious steps to solve problems.
Elsewhere in the country, public officials have found that collaborations with nonprofit
contractors are effective ways to solve problems that serve everyone’s best interests. Kansas –
through this misguided and harmful addition – appears to be going in the direction of greater
confrontation and, in the process, is devolving into one of the very worst offenders in the
country.
Conclusion
Nonprofit organizations exist to pursue their missions of improving lives and strengthening
communities. Core elements of nonprofit work entail civic engagement, giving voice to the
voiceless, and speaking truth to power. The new language in Kansas contracts and grants with
nonprofit service providers is unnecessary, unconstitutional, and un-American. Further, itexacerbates the pre-existing contracting problems that land Kansas in the bottom quarter of
the states. The new contract language is an unsupportable abridgement of the fundamental
advocacy and speech rights of nonprofit organizations in Kansas and should be stricken from
existing contracts and withheld from all future negotiations.
______________________
The National Council of Nonprofits, the nation’s largest network of nonprofit organizations with
more than 25,000 member nonprofit organizations, works through its member State
Associations to amplify the voices of America’s local community-based nonprofit organizations,help them engage in critical policy issues affecting the sector, manage and lead more
effectively, collaborate and exchange solutions, and achieve greater impact in their
communities. The National Council also operates the Center for Lobbying in the Public Interest,
with its mission of “promoting, supporting, and protecting nonprofit advocacy and lobbying.”
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 8/9
URBAN INSTITUTE Center on Nonprofits and Philanthropy
K ANSAS
Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341
Crime and legal related . . . . . . . . . . . . . . . . . . . .1%
Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . 12%
Food, agriculture, and nutrition . . . . . . . . . . . . <1%
Housing and shelter . . . . . . . . . . . . . . . . . . . . . 10%
Public safety and disaster relief . . . . . . . . . . . . <1%
Youth development . . . . . . . . . . . . . . . . . . . . . <1%
About the same, 51%
Better, 6%
Worse, 43%
Human service: multipurpose . . . . . . . . . . . . . .75%Community and economic development . . . . . . 2%
Total contracts/grants . . . . . . . . . . . . . . . . . . .100% 1 government contract/grant . . . . . . . . . . . . . . . . 22%
2 – 4 government contracts/grants . . . . . . . . . . . . 46%
5 or more government contracts/grants . . . . . . . .32%
Local government . . . . . . . . . . . . . . . . . . . . . . .78%
State government . . . . . . . . . . . . . . . . . . . . . . . 81%
Federal government . . . . . . . . . . . . . . . . . . . . . 84% Local government . . . . . . . . . . . . . . . . . . . . . . . . . 8%
State government . . . . . . . . . . . . . . . . . . . . . . . . .38%
Federal government . . . . . . . . . . . . . . . . . . . . . . .54%
13
42
40
6
12
30%
31%
31%
25%
48%
50%
38%
31%
32%
11%
20%
31%
38%
43%
41%
0% 10% 20% 30% 40% 50% 60%
Late payments (beyond
contract specifications)
Government changes to
contracts/grants
Complexity/time required by
application process
Complexity/time required for
reporting on grants/contracts
Payments do not cover full cost of
contracted services
Not a problem Small problem Big problem
1=highest percentage of nonprofits with problems;51=lowest percentage of nonprofits with problems
7/31/2019 Consistent or Unconstitutional: Analysis of New Kansas Contract and Grant Language Limiting Speech
http://slidepdf.com/reader/full/consistent-or-unconstitutional-analysis-of-new-kansas-contract-and-grant-language 9/9
Kansas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39%
Nationwide . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41%
Local government . . . . . . . . . . . . . . . . . . . . . n/r***
State government . . . . . . . . . . . . . . 90 days or more
Federal government . . . . . . . . . . . . 90 days or more
Require matching or sharing costs. . . . . . . . . . .59%
43%
30%
38% 36%
47%43%
40%42%
0%
20%
40%
60%
$100,000 ─
$249,999
$250,000 ─
$999,999
$1 million
or more
Overall
Kansas Nationwide
Limit program administrative/overhead. . . . . . .58%
Limit organization administrative/overhead . . .56%
Local government agencies . . . . . . . . . . . . . . . . .52% State government agencies . . . . . . . . . . . . . . . . . 81%
Federal government agencies. . . . . . . . . . . . . . . .29% Individual donations . . . . . . . . . . . . . . . . . . . . . . 59%
Report results/outcomes of programs . . . . . . . . 80% Private foundations . . . . . . . . . . . . . . . . . . . . . . . 50%
Give feedback on contracting procedures . . . . .60% Corporate donations . . . . . . . . . . . . . . . . . . . . . 68%
Investment income . . . . . . . . . . . . . . . . . . . . . . 59%
21%
22%
23%
38%
39%
50%
22%
14%
22%
35%
35%
54%
Reduce number of programs or services
Borrow funds or increase line(s) of credit
Reduce health, retirement or other staff benefits
Reduce number of employees
Draw on reserves
Freeze or reduce employee salaries
Kansas
Nationwide
Source: The Urban Institute National Survey of Nonprofit-Government Contracting and Grants, 2010. Notes: Percentages may not sum to 100 because of rounding. Full report available at http://www.urban.org/url.cfm?ID=412159.*Number is based on a selected group of direct human service providers with budgets greater than $100,000.**See appendix for more details on state rankings.***Data not reported or too few respondents answered the question.
top related