8:53 am

Terry Sercer is on the agenda for this mornings commission meeting at 9:00. There are already 8 people in attendance.

9:00 am
As the clock chimes indicating the top of the hour, everyone stands and begins the meeting with the pledge to the American flag.

Chairman Endicott introduced Terry Sercer as an accredited auditor.

Terry said he was asked to:

• Verify the proper publication of taxes.
• Summarize delinquent taxes
• Verify the process for tax sales.
• Verify whether proper interest charges are being applied.

 9:03 am

Mr. Sercer did not spend time looking at previous years tax sales.  He said he was told by the Treasurer that the previous tax sale included people who had been on the payment plan.

9:05 am

The accounting for partial payments involves putting money into a fund and then when the amount is sufficient, applying it to the amount owed. There were two systems in use because the new system couldn’t handle partial payments.

9:07 am

Mr. Sercer was able to obtain copies of every payment plan. He went through every one to make sure the proper interest rate was supplied. He then traced all the partial payments to the records on the old system. He also verified the proper payment of interest.

9:08 am
Mr. Sercer said that he didn’t think people knew about the partial payment plan and there didn’t seem to be any type of written eligibility requirements, but noted that state law allows the Treasurer to use his/her own judgement.

He said that the Treasurer and several relatives were repeat users of the plan.  Also there were several personal property taxes that were on the plan. Mr. Sercer said he wasn’t aware of a statute that allows payment plans on personal property. The Treasurer said she checked with Johnson county before doing this.

Mr. Sercer pointed out several examples where plans were for very small amounts that wouldn’t have allowed the individuals to pay off the amounts owed within 3 years. He referred to these as “errors in judgement.”

9:13 am
There were numerous errors in the manner in which partial payment plans were established. Mr. Sercer said that the amortization on 23 of 224 payment plans that are now in plance “made no sense whatsoever.” The Treasurer wasn’t sure how these had been calculated.  He said he couldn’t audit the history to see if it had been changed from what the computer calculated. There was not correlation between the plans that had the expected interest and the ones that had “crazy” interest.

18 of the agreements used the right tax, but the interest rate was far to low. In some cases the interest rate was 0%. 27 agreements had a higher interest rate than they should have. 8 plans looked reasonable, but there wasn’t a schedule to verify them. About 1/3 had interest rate issues.

9:17 am
The computer system from Infinitec that was calculating interest was no longer under maintenance, so that might have been part of the reason some interest rates were incorrect. These errors are in addition to the ones mentioned above.

9:19 am
The way that the interest and tax were applied was incorrect. Sometimes early payments were applied entirely to interest. He said this was a flaw in the program itself.

Mr. Sercer said there were also errors in the way it was managed and implemented.  Some tax payers did not make their payments on time. Late payments should require recalculating the interest. The actual payment plan states that it is estimated amount and that late payments may require additional interest to be paid.

9:21 am
Most people on the payment plan did not pay the amount they should have.  One tax payer under paid by $5,000. The Treasurer’s own tax payments were low, but she paid to catch up and now has overpaid.

A number of tax payers overpaid interest by approximately $800. (It sounds like this is cumulative–not per tax payer.)

There was a case where the Treasurer wrote off interest based on a judgement call in hopes of recovering some taxes before the property went to sale.  Mr. Sercer said he was told that was the only case where that occurred.

9:26 am
88% of the plans currently in place are not making payments as agreed–and that is even given them some leeway for time.  Mr. Sercer said that the payments that are not being paid can probably be terminated.

It is the auditor’s understanding that property on a payment plan still needs to be sold. He suggest that all the money in the payment plan fund should be applied to taxes and move forward on the new system that is calculating interest correctly.

9:29 am
Mr. Sercer said there needs to be better controls in place so amounts can’t be over-ridden without the approval of a second person–preferably from a different office.

9:32 am
Susan Porter (former Treasury employee) said that some of the properties were held off the tax sale and not even sent to the abstractor. She said there was an individual who were held off tax sale for two years and only made one payment of $100. She said they took the money out of the account and applied it to someone else’s account.

She said she knows of three that were held of the tax sale for “personal reason’s of Susan [Quick].”

Mr. Sercer said he did not go back and verify old sales, but agrees that the presence of a payment plan should not change whether or not property is sold.

9:37 am
Susan Porter said that she was repeatedly told to “make it work” in cases where she was told to drop off interest that was owed. She said that the interest that was being calculated was correct, but they were being told to manually change the interest.

She said the case where the interest was completely dropped (which Mr. Sercer mentioned above) was dropped at the request of a realtor who said they could sell the property if the interest was not being charged.

9:41 am
Cecilia Kramer brought and example to ask Mr. Sercer about. He was familiar with that case and said the calculation was wrong because it was based on the old system.  Asked some questions about the listing she had originally been given and Mr. Sercer said that some of the numbers on it were incorrect.

Mr. Sercer said the he suspects that if 2011 is wrong, previous years are as well.

9:45 am
One citizen said that he wasn’t sure if he would pay his taxes next year until this is all sorted out.

There was some discussion about how the computer should work in letting people override interest amounts. Mr. Sercer suggested that if a system is put into place where override authority must require more than one person. His example was the treasurer and someone from the clerk’s department.

10:00 am
Chairman Endicott asked about Mr. Sercer’s meeting with the Attorney General and KBI. He said they said they would take his report under advisement. He said that the Treasurer could be removed based on failure to perform their duties. Mr. Sercer said that the Commissioner’s would have to ask the County Attorney to see if the findings are grounds for removal of the Treasurer. The County Attorney would contact the Attorney General and they would start the process if there were grounds for removal.

Mr. Sercer said Attorney General isn’t going to automatically pursue removing someone based on the report he presented to them.

Mr. Sercer said he did not audit whether or not properties were left off of tax sales.

10:14 am
Mr. Sercer was asked if he recommended dumping the old software. He said his understanding was that once the payment plans were done away with and no longer being run, the Treasurer planned to go to the new system and not keep the old one.

The Attorney General said because there are no qualifications for becoming County Treasurer so the AG office looks into several issues in one of the 105 counties each year related to issues like this.

10:18 am
Susan Porter asked if the properties that weren’t previously advertised in the newspaper could actually be sold. She asked if delinquent properties had three years from the first year they were published.

Chairman Endicott said that Mr. Meara “is reviewing that hopefully at this moment.”  He also said that most of the properties send to the abstractor were published as they should have been in the past.

10:20 am
Susan Porter said that as an employee of the Treasurer’s department, they told people on the payment plan were allowed to skip a month, pay late or bring in a lump sum.

Mr. Sercer said the county was out about $5000 in the eight months he audited.

10:23 am
Mr. Sercer and the Commissioners were asked if the people who underpaid their taxes could still be collected from and if people who overpaid would get a refund. The Commissioners didn’t know, but Mr. Sercer said in the case of the person who underpaid by $5,000 they had a statement from the county that specifically said their taxes had been paid for at least the past 2 years.

He said that as far as he knows the fact that this person saved $5,000 on their taxes was not a relative of someone in the Treasurer’s department.

10:29 am
Melvin Antrim asked what the process would be if an elected official was removed from office. The answer is that their party would make a recommendation to the Governor and the Governor would appoint someone.

Randy Handly suggested that the Commissioner’s contact the state representative to see about rewriting the laws in order to change legislation to give less authority to the Treasurer. He felt that the laws need to be changed.

10:39 am
Most people left after the discussion turned to other matters.

The county is looking at buying a fuel truck to fill the generators at the rock quarry. Commissioner Warren, made a motion to purchase a 1979 GMC fuel truck from Mike Judy for $5,000. It will be paid for in January and picked up at that time. The motion passed.

11:00 am
Stewart Porter who is the engineer for the sewer district project out at the lake came in to bring the commission up to speed on a few items.  The lift station will be ready to go in a few days, but they don’t have a date for when they will turn it on.

He wondered if the commission had given any thought to the grinder pump at the old Wally Anthony property. He didn’t think it needs to come out, but wondered if the Commissioners felt it need to be moved because of flooding.

Commissioner Warren said that in 1986 he lived near there and in 1986 the water got 12 inches above his dock. He suggested that Mr. Porter measure off the top of the dock to see if the pump was high enough.

The engineers said that the placement of that grinder unit was determined by the easements that they had to work with. The easement was created by condemning part of the lot and the engineers were trying to not condemn a strip through the center of someone’s lot.

Lake Fort Scott isn’t mapped for 100 year flood elevations, so the engineers haven’t had a good guide to work off of. The engineers said it would probably cost something like $1,000 to move it, but it would greatly depend on where they want to put it.

They will compare the elevation to Commissioner Warren’s old dock and come back with additional data.

Stewart Porter asked what should be done with old holding tanks. The original idea was to collapse them, but some of the locations are difficult to get to and may need to just be filled with sand.  His goal is to minimize destroying people’s driveways and other property.

Chairman Endicott questioned whose responsibility it would be if a holding tank caved in because it wasn’t collapsed like the others. It sounds like the holding tank still belongs to the homeowner and the agreement was to render the tanks inoperable so the actual method doesn’t matter.

Some individuals do not want the holding tank to be demolished, but it wasn’t clear why.

The Commissioners agreed that filling them with sand was sufficient to destroy them. There was some discussion about the tanks that were above ground where demolishing the tank might leave a pile of rubble and the homeowner might prefer to have the tank left as it is and simply filled with sand.

The engineers said that communication with homeowners has been difficult. There are still a handful of homeowner where they still have no contact information. The County Attorney said she may be able to help contact these individuals.

The bulk of the equipment should be operable within the next month, but actual date will depend on the how much cooperation they get from homeowners. The engineers felt that it would likely be somewhere in the 4 to 6 range.

At that point, the commissioners will need to hold a public hearing to set the rates that people will be charged once the costs are known. Some people may start pumping (and not being charged) before that point.

There will be no county commission meeting on Friday due to a large meeting with 17 other South East Kansas counties in Yates Center.

Roads

There was some discussion about an individual who was stealing gravel from the roads. There was also

Mike Houston and Larry Beerbower came in to talk to the commissioners about treating the fuel that is used in the county vehicles. It is a fuel additive that they say works for gas or diesel. They claim it will increase the efficiency by 10%. It is called Xtreme Fuel Treatment. They said it will lower the ignition rate of the fuel down to 800 degrees.

Mr. Hueston said that the treatment “knocked 200 RPM off”. He also says he got 11.7 MPG instead of 11.1.

When asked if there are other counties using the product, Mr. Beerbower said that the counties that tested it decided not to use it because it would reduce their budget for next year if they had fuel savings.

County Attorney

There was some paperwork related to the lease for a rock query that was signed.

As preparation for getting bids on insurance, there was a discussion on how the city of Fort Scott handled getting quotes for insurance. The city had limited bids to companies in the city of Fort Scott based on their rules for giving preference to local businesses. The county has similar rules that can be used as part of a bid process.

Fort Scott does not have an insurance program with an “attorney assist” service. This is a service where the insured can call and ask questions of an attorney from the insurance company. The county currently has this and is using it now.

Tax Sale

The commissioners received copies of the publications from the past years from the treasurer and a copy of the list that was sent to the abstracting company.

Let me preface this article by saying that I have a great deal of respect for the county commissioners. Anyone who thinks their job is easy needs to spend some time in the commission meetings. They make a lot of difficult decisions and citizens of Bourbon county should be very proud of their elected officials in this office. Even if you disagree with a particular decision, I think any reasonable person would have to agree that they are doing a very good job.

That said, I do believe that the decision to conduct two thirty minute executive sessions to discuss the tax sale on October 7th, was not in the best interest of the citizens of Bourbon county. Discussions related to taking people’s property away from them need to be done in the most open manner possible.

In the commissioner’s defense, their legal council for the tax sale suggested the executive session, but ultimately the decision belongs to the commissioners as there is no KOMA (Kansas Open Meetings Act) requirement to go into executive session for these types of matters.

Does a public body have a duty to close certain discussions? Not under the KOMA. The KOMA allows executives session discussions; it does not require them. (source: attorney general website)

On Friday, I asked the commissioners to reveal what had been discussed in the executive session–particularly anything that would be beneficial for the public to know.

This request was made based on the fact that commissioners are free to share what goes on in executive sessions according to the attorney general:

Does the KOMA require members of a public body to refrain from publicly revealing matters that were discussed while in executive sessions?
No.   Some other laws, or considerations such as fiduciary duty, personal privacy rights, or contracts, may require or influence such confidentiality. But the KOMA itself does not require that the topics listed in K.S.A. 75-4319 always be kept private. (source)

Part of my logic in asking for that information is that KOMA violations that do not impede the public’s right to know, are deemed technical violations. The big advantage of having a technical violation where the public has been informed is that such a disclosure might prevent the commission from being fined $500 each, if there was indeed a violation of the law.

The court will not void any action and will overlook technical violations of the law if the spirit of the law has been met, there has been a good-faith effort to comply, there was substantial compliance with the KOMA, no one was prejudiced, and the public’s right to know had not been effectively denied. (source)

The commission felt that the discussion needed to be kept secret and declined to reveal what was discussed.

In this article, I want to examine a bit of what happened at that meeting an look at the legalities regarding when and how an executive session can be conducted for attorney-client privilege issues.

Dan Meara is the attorney who will be conducting the tax sale for the county.  On October 7th, there were a handful of people attending who were there mainly to find out more about the property tax and tax sale.  Mr. Meara suggested that the commissioner’s go into executive session to discuss the tax sale and that Susan Quick be present.

To go into executive session, a body that is subject to Kansas Open Meetings Act must make and pass a motion that gives the legal basis for the executive session along with the subject to be discussed and how long the session will last. After some discussion they agreed that the exception was “attorney/client privilege” and the subject was “tax sale”.

KSA 75-4319 does allow executive session for attorney client privilege for “consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship.”  So what constitutes a privileged relationship?

The attorney general website gives three criteria that must be met in order for their to be a privileged relationship.

1. The body’s attorney (or attorneys) must be present;
2. The communication must be privileged, and
3. No other third parties may be present.

Acting as the attorney for the tax sale, Mr. Meara certainly falls into the category of attorney for the body, so the question becomes whether or not discussion of the tax sale is privileged information. At first it seems it would not be privileged information because of the public nature. However, other attorney general’s website says the definition of privileged communication rests entirely with the client and there is a great deal of leeway in what can be discussed with the attorney in an executive session as long as a privileged relationship exists.

Confidentiality can attach to any communication between an attorney and a client wherein legal advice or assistance is sought or given, or information imparted in order to facilitate such advice or assistance. With very limited ethical exceptions, the client alone can decide whether to waive such confidentiality. (source)

However, the attorney general has also issued opinion 82-247 basically stating that if a body wants to go into executive session, they need to have a very well thought out reason for it. The weight of an opinion is much greater than text from the attorney general website, so the opinion should be what determines the actions of elected officials.

Since exceptions to the general policy favoring open meetings will be construed narrowly, legislative and administrative bodies or agencies would be well-advised to exercise the right to an executive recess for attorney-client communications very judiciously. … In addition, the nature of the communication should “be of a confidential character” and so regarded at least by the governmental body of agency.

There are obviously many situations that call for attorney-client privilege. If the county is being sued for millions of dollars, it is in the public’s best interest for discussions of the legal strategy to not be a matter of public record.

However, I cannot think of any reason why discussion of the tax sale would “be of a confidential character” other than the fact that someone wanted to keep them from the public. A large group of people may lose their property and have it auctioned off by the county.  That is an action that should be done in the public eye and subject to public scrutiny–not something that is handled in secretive sessions.

Now, it is easy to say that something should be open without knowing what was being discussed. Just because it is hard to imagine a discussion where it was in the public interest to keep the tax sale topic out of the public record does not mean such a discussion could not exist. So lets assume that, hypothetically, the discussion did fall into the narrow allowable instances of attorney-client privilege and the matters discussed were of “confidential character.” In other words, lets assume that any reasonable person who knew what was discussed would agree that the meeting should have been closed.

Under that hypothetical scenario, would the executive session have been legal?

The law recognizes that things that fall under attorney-client privilege should not be made public, so it places an additional criteria on how executive sessions must be conducted when they are using the “attorney-client privilege” exception to KOMA. This is the requirement that no other third parties may be present. This makes sense because the attorney will not talk about confidential matters regarding their clients. The client is allowed to discuss matters that were discussed in executive session, but since they are the client, that is their prerogative. However, if you have a third party present, they are not restricted in communicating the contents of the meeting. So the presence of a third party basically means that the subject matter is not confidential enough to be fall under this exception to KOMA. And if it isn’t confidential, it should be available to the public.

So who is a third party?

The 92-56 opinion by the attorney general says:

K.S.A. 75-4319(b)(2) may only be used to close meetings if the attorney for the body is present, if persons other than the client and the attorney and his or her agents are excluded from the executive session, and if the communication in the executive session is privileged in nature.

This gets a little difficult because “other than the client and the attorney and his or her agents” is not clear as to whether or not the agents refer to the client’s agents or the attorney’s agents. A few sentences before this passage, the “client” is referred to as a “body” so the sudden shift to “his or her” seems to indicate reference to the attorney’s agent. This would meant the attorney could bring a paralegal, stenographer or other necessary staff to a closed executive session for attorney-client privilege.

Another opinion 82-247 from the attorney general confirms the above interpretation.

However, the attorney-client privilege may not be invoked if the attorney is not present, or if persons, other than the attorney and his or her agents, are parties to the communication.

So it would appear that the commission is not allowed to have other people in the room during an executive session called because of the attorney-client privilege exception like they are for other executive sessions.

So was Susan Quick (the county treasurer) allowed to be in the meeting?

Back to the 92-56 opinion, it talks about the “attorney for the body” and then mentions the client. The most reasonable explanation seems to be that the body is the client. In this case if the county commissioners are the body in question, it seems they would be considered the client.

Such bodies may include in some executive sessions those  individuals whom the body determines will assist with the executive session discussion. Mere observers may not attend executive sessions. Moreover, K.S.A. 75-4319(b)(2) may only be used to  close meetings if the attorney for the body is present, if persons other than the client and the  attorney and his or her agents are excluded from the executive session, and if the communication in  the executive session is privileged in nature.

According to an outline of the KOMA regulations:

Who can be present in an executive session–only the members of a public body have the right to attend executive session. (AG Opin. No. 86-14).

1. Mere observers may not attend. Inclusion of general observers means the meeting should be open to all members of the public. (AG Opins. No. 82-176; 86-143; 92-56).9
2. Persons who aid the body in its discussions may be discretionarily admitted. (AG Opin. No. 91-31).
3. Johnson County school district; members of advisory boards have no right to attend. (AG Opin. No. 86-143).
4. County clerk has no right to attend executive sessions. (AG Opin. No. 87-170).
5. Non-clients cannot attend executive sessions for attorney-client privileged communication. (AG Opin. No. 82-247) (source)

Whoever is defined as the “client” obviously has the right to attend a meeting with their attorney. Point four seems to indicate that the county clerk is not part of what is defined as the “client” which fits within the idea that the client is the commissioners. If the clerk is not considered a “client” it would be illogical to assume that the county treasurer is considered the client along with the commissioners for the purpose of county commission meetings.

Note: The part above is where I found the least amount of clear information. If you find an error in my logic or laws/opinions that I have overlooked, please correct me in the comments and I will do my best to rectify the situation quickly.

When I asked about the legal basis of having the treasurer in the meeting, I was told the commissioners were allowed to bring in people who could aid their discussion. That corresponds to point two. However, point five specifically over-rides point two when attorney-client privilege is the exception used to invoke the executive session. It does apply in other situations where executive session is invoked. For example, when discussing employment matters related to non-elected employees.

The only way I can possibly see that having the treasurer in the meeting would have been legal would have been to consider the treasurer within the definition of “client”. However, if that is the case, then there was no reason for the county clerk to leave because she would be considered a “client” as well–as would any elected county official and possibly all the county employees. In fact, everyone in Bourbon county could in some way be considered a “client” of a lawyer working or the county.

As far as I can find, all the laws and attorney general opinions seem to indicate that the executive session should not have been used due to the general nature of the topics being discussed. Further, even if there was a legitimate reason for a closed session, the presence of the county treasurer appears to have made the legal basis for the executive session questionable.

However, even if it was legal to use attorney-client privilege and even if the inclusion of the treasurer was acceptable, government in Kansas is supposed to be open. If the spirit of open government is being followed, then situations like this should never happen. The default position should be to keep everything open with the rare exception where it is in the public interest to keep something out of the public record. In those cases the topic given for going into executive session should be specific enough that any reasonable person can see the need for a private discussion. “Tax sale” is not a subject with enough specificity to do that.

Note: If I have made any errors in how I interpreted the law or attorney general opinions, please leave me a comment and I will do my best to correct things as quickly as possible.

Roads

Evert Tensley came in to say that gravel trucks that weren’t covered and rocks flying off had chipped his windshield. There was some discussion about trying to pack the gravel into the dump trucks a bit better and possibly getting tarps ($1000 each) for the trucks.

Executive Session Last Week

The commissioners were asked if they could share the parts of the discussion in the executive session related to the tax sale on Friday that they didn’t feel would put the county at any type of risk. The request was based on the public nature of the discussion and because it seemed that the bulk of the discussion wouldn’t hurt the county’s legal position.

There was some concern that it might not be legal to tell things that were mentioned in executive session. However, Commissioner Warren pointed out that in other meetings members involved in the executive session would come out and tell the public what was discussed. He said it was causing all kinds of problems and confusion.

Note: The Attorney General’s website specifies that discussions made under executive session can be revealed to the public unless other laws apply.

Some other laws, or considerations such as fiduciary duty, personal privacy rights, or contracts, may require or influence such confidentiality. But the KOMA itself does not require that the topics listed in K.S.A. 75-4319 always be kept private. (source)

Chairman Endicott said that since revealing what was discussed  would defeat the purpose of the executive session, he didn’t want to say what was discussed.

County Insurance

There was some discussion about bidding out insurance which is currently held by KCAMP. In previous meetings the commission decided to bid out the insurance, but they were looking for the best way to facilitate the process.

The county attorney is going to check with the city to see how they handle their insurance.

County Map

The 911 map was proofed by an individual at the chamber who is doing an excellent job of helping catch errors to make it very accurate. She has spent hours comparing it to a bunch of other maps. She is putting a great deal of effort into and the commissioner’s were very appreciative of her help.

Fort Scott Chamber Directory

The chamber had previously asked if the county would like to buy an ad in the chamber directory. The smallest ad costs $175. The city and BEDCO have ads. The commission decided to buy one of the small ads. The idea was to include the website and a picture of the court house.

Tax Sale

The county attorney suggested that commissioners compare people on payment plan as to whether or not they had been published for 2006 and 2007. She felt the county should make sure that the properties were bid-in. The county attorney feels that the publication is necessary in order to trigger the bid-in process which is necessary to create a lein agains the properties necessary to forclose.

The commissioners decided to ask for a copy of the publication of delinquent taxes from the past few years in order to see if the names on the list given to the abstracting company were published or not.

 

It was originally assumed that Terry Sercer would complete the audit and then it would be presented to the commission who would make it public. For example, when Terry Sercer was asked to perform the audit, there is no mention of it going to any entity other than the commission.

Jingles Endicott made a motion to authorize Terry Sercer audit the payment plan, per his recommendations and to look into prior years.  Allen Warren seconded the motion and all voted in favor.  Commissioners said that as soon as they know any results, they will be made public. (September 2nd Minutes)

My notes from a week later on September 9th reflected that the commission still held the same view.

The auditor is still going through past taxes and once he is finished, the commission said they would make the results public.

The Fort Scott Tribune talked to Terry Sercer and seemed to indicate that he would be sharing the results of the audit with the commissioners.

Terry Sercer, of Diehl Banwart Bolten CPAs, completed the county’s 2010 audit and was given the responsibility of looking into the Bourbon County Treasurer’s Office following the allegations of questionable and potentially illegal practices by Treasurer Susan Quick. (source)

When I emailed Mr. Sercer to see if he was going to be presenting the audit at the commission meeting on September 30th, he did indicate that the paper was incorrect. However, it appeared that the part that was misunderstood was this:

Results of the audit are expected to be presented to the commission during their Oct. 3, meeting, however, the appointment has not yet been made, Sercer said. (source)

In fact, Mr. Sercer indicated that he expected some type of public announcement once the report was complete.

However, on October 3rd, the commission seemed unsure of how the report from the audit would be handled and where it would be sent.

Terry Sercer has yet to provide the commissioners with a timeline for when the audit and report will be completed. The commission wasn’t clear if the report would come to them or go to the county attorney or the attorney general. Jingles Endicott will contact Mr. Sercer and have an update on the timeline for Friday’s meeting. (Notes from October 3rd.)

At the meeting on October 7th, the commission said that the report would be going to the KBI and the Attorney General. Terry Sercer will be presenting it to them on October 17th. I asked if the change  to present to the KBI and Attorney General before being presented to the commission  was based on what the audit had found. The commissioners said “no” and that regardless of the findings it would not have been presented at commission meeting before being presented elsewhere. Commissioner Coleman pointed out that the commission isn’t in a position to determine if there are any criminal implications so it wouldn’t make sense to give it to them first.

The other thing that seems a bit odd is that on Monday (October the 3rd) the commissioners didn’t know when the report would be complete and Jingles Endicott said that he would check with Terry Sercer to find out the status.  However, on October the 7th, they all seemed to be familiar with the fact that the report would not be presented at a commission meeting. Update: It appears that commissioner Endicott had answered the same question before I came into the meeting, so the other commissioners may have just been explaining what he had originally said. Also there may have been more details given when the question was originally asked.

This raises some questions.

• If the plan was to give it to the KBI and Attorney General all along, why was everyone confused about it until October 7th?
• If the commission knew it was not going to be presented at a commission meeting, why wasn’t that mentioned to the numerous people who showed up on Monday’s and Friday’s to ask about it?
• If audit was ordered by the commission to be presented to them, who changed these instructions to have it presented to the KBI and Attorney General?

It is unclear if this was an actual change of plans or if it was just a misunderstanding as to how these sort of matters proceed.

I called the KBI and the person I spoke with couldn’t find a record of any meeting planned for October 17th regarding an audit.  The Attorney General’s office said that if there was some type of investigation, they could not comment on it one way or another.  I asked if that meant if there was presentation of the audit report on the 17th, it would be closed to the public and was told, “Under that hypothetical situation, that would be correct.”

By the way, if you see anything that I misunderstood or any errors, please leave a note in the comments.

 

Audit and Report

Terry Sercer will be presenting a report on October 17th to the KBI and Attorney General. Eventually there will be a report that will come to the county commissioners.

On August the 30th, the Bourbon County Attorney requested that the KBI and Attorney General investigate the allegations made against the Bourbon County Treasurer.

When asked if the report would have come back to the commissioners if everything looked clear, the commissioners said “no” because the KBI and the Attorney General is the one who will make the call as to whether anything criminal occurred. According to the commissioners at the meeting today, Terry Sercer was never going to present directly to the commission.

Tax Sale

Dan Meara requested a 30 minute executive session for the tax foreclosure case with the commissioners, the County Treasurer (Susan Quick) and the County Attorney (Teri Johnson).  Teri Johnson was in a hearing and unable to come. The commissioners were unclear if she could join once an executive session was started. Joanne Long (County Clerk) said that she could.

Questions were raised about the purpose of the executive session and whether or not it indicated that the county was facing a potential lawsuit related to the tax sale. Dan Meara said that the commissioners were allowed to talk to their lawyers (Mr. Meara is representing the county for the tax sale) privately as part of attorney/client privilege and the litigation was the tax sale–not a pending lawsuit against the county.

Executive sessions can only be held if they fall within an exception to the Kansas Open Meetings Act. Some of the exceptions used in the past have been discussion of the employment of non-elected officials, non-elected officials salaries, attorney/client privilege, lawsuit settlement and pending litigation. Tax sale issues were all discussed openly up to this point (to the best of my knowledge). In looking at previous meeting minutes, I cannot find an instance where an executive session was used to discuss tax sale matters. However, it could have been discussed under the umbrella of “attorney/client” privilege and the actual purpose not noted in the minutes.

At the last meeting Dan Meara attended, there were questions raised about what properties could be sold and whether properties not listed in the paper had actually begun the redemption period which must expire before they can be sold. Mr. Meara was going to look into these issues. If those topics are not addressed in an open forum, it seems likely that they were discussed as part of the executive session although it isn’t clear why an executive session would be necessary.

According to the Attorney General, the attorney/client exception to the Kansas Open Record Act (see 5 b of this pdf),  only applies when the information is actually privileged. Privileged information is defined in KSA 60-426.

Before the end of the executive session, Teri Johnson joined the commissioners, Susan Quick, and Dan Meara.

After the 30 minutes were up, Dean West spoke with the commission for a few minutes and then they went back into executive session for another 30 minutes. I had to leave before the meeting was opened up again.

Dean West

Said that 12% of his social security was going toward property taxes for his small house. He doesn’t want to have to sell his house and move into a nursing home.  Joanne Long said that there had been some people trying to get tax rates locked in for senior citizens, but that law has not passed yet.

Grinder Pumps in New Sewer District

Pam Franklin expressed concern that where the grinder pump was placed at her place at the lake would flood. She didn’t want to have to replace a $1,500 pump every spring. Jingles Endicott said the pumps are submersible and it wouldn’t hurt them to be under water and would use a lot of electricity. Pam Franklin was concerned that they would be pumping water out of the lake.

Jingles said that they talked to the company that was putting the pumps and they are going to move their pump.

Here are some notes from today’s commission meeting.

Payment Plan Audit Questions

Terry Sercer has yet to provide the commissioners with a timeline for when the audit and report will be completed. The commission wasn’t clear if the report would come to them or go to the county attorney or the attorney general. Jingles Endicott will contact Mr. Sercer and have an update on the timeline for Friday’s meeting.

Susan Porter (former employee in the treasurer’s office) said she believed that some of the taxes that were left off of the previous sale went all the pay back to 2004 and that some of those properties were not ever submitted to the abstract office so they never got to the point where the county commission could decided whether or not they were to be put on the tax sale.

The commission was asked if properties that were left out of the paper actually had the redemption start date triggered. They said they had not heard back from Dan Meara regarding the issue of whether or not payment plan properties can be sold. (more info on this issue)

Evidently last Friday someone was at the commission meeting who was five years delinquent and was wondering how many years he would need to pay in order to keep his property off the tax sale. Terri Johnson (County Attorney) is still checking into whether or not the property could be partially redeemed or not. She has asked the treasurer for a copy of the newspaper publications for the previous years to see if this particular property was listed or not.

Gene Cowen asked why the payment plan contracts were not signed. Jingles Endicott explained that the contract didn’t allow the property owner to do anything different than they could have done without the payment plan so whether they were signed or not didn’t really matter.

Vicious dog question

Curtis O’Dell had some questions about vicious dogs in the county. He said has had problems with his neighborhood pit bulls attacking his family. He said that the sheriff’s department has been out there 5 or 6 times.

Harold Coleman said there is a vicious dog ordinance, but no leash laws in the county. He said you aren’t allowed to have a pit bull in Bourbon County, but it is very difficult to say whether or not a dog is a pit bull. He said that anyone who is bit needs to make a complaint. Curtis said there had been a complaint, but it was thrown out of court.

Commissioner Coleman said Mr. O’Dell should take the signed documentation of times the dogs have bit or chased people to the sheriff’s department.

Misc

• $200 to Hammond Community Center for their building.
• Dump site in Garland that needs to be cleaned up, but there is concern that the trash will just get moved down the road instead of being taken to the dump.
• The commission agreed to lease a rock quarry from the George Family Trust & other members of the George family.

• The county is going to be accepting bids for workers comp, property, and casualty insurance.
• The college is looking to put a new surface on the walking trail and asking if the county, city and Mercy can all come together to do it.
• The county is using a TWork’s plan to replace some bridges. The plan has take federal money & converted it to state money to reduce the amount of red tape. The program will reimburse $0.90 of every dollar for certain projects.
• One of the three year old road-graders has a problem where pushing on the brake triggers the rear windshield wiper.
• The newer road-graders that were recently purchased have some type of communication system so errors and maintenance issues can be viewed from a web page.

As of 3:15 pm today, Terry Sercer was not on the commission agenda for Friday. According to the Tribune Terry expected to have the audit done by Friday. Terry was not immediately available by phone, so it isn’t clear if the audit is complete or not.

Update: I did hear back from Terry Sercer via and he said that the Tribune had implied that he would meet with the commissioners this week which was incorrect. He is trying to get the Tribune to correct this error. Obviously he can’t comment on the audit, but it doesn’t sound like the report from the audit is finished yet.

When property taxes are not paid, the delinquent property is to be “bid off” to the county for the amount of unpaid taxes. This is kind of like an auction, but one where the county is the only person allowed to bid and only for the amount of unpaid taxes, interest and fees. The list is prepared in July, but the actual sale/bid off process occurs after the second Tuesday in  September and is preceded by notification printed in the paper.

Between July 1 and July 10 of each year, the county treasurer shall prepare a list of all real estate subject to sale, [ … ] . The county treasurer also shall prepare an accompanying notice stating that the county treasurer will sell the real estate described in the list to the county for the amount of the delinquent taxes and legal charges due on the real estate and that the sale will be on or after the first Tuesday of September following publication of the notice under K.S.A. 79-2303, and amendments thereto. (source)

This it he process for the county to take ownership of the land, but it is not a foreclosure process. People are still allowed to use the property until foreclosure occurs after a redemption period has passed.

If property gets left off the published list and the “bid off” that occurs in September, there is a provision for that as well.

If any county treasurer shall unavoidably omit or fail to sell any real estate for unpaid taxes on the first Tuesday of September, he or she shall advertise and sell such real estate on the fourth Monday of October next ensuing, and such advertisement and sale shall conform in all respects to the provisions of this act, and shall be as binding and valid as if such sale had been made on the first Tuesday of September. (source)

Interestingly, there is a provision for cases where property was left off the list for a given year as well.

If any county treasurer at any time discovers that any tract or lot of real estate has not been put on the list of delinquent taxes and not sold for any preceding year, the treasurer shall be required to place the omitted tract or lot on the list of delinquent taxes for the current year, and sell the tract or lot as directed by this act in other cases. (source)

So if property was left of the list in one year, it must be included the next. What that means in the case of Bourbon County is that if anyone didn’t pay taxes before 2010, were not printed in the paper for that year, but somehow managed to pay their 2010 taxes, the should have had their names printed in the paper and the property bid off to the county this year.  I’m not aware of any property that was in that specific situation, but it means that the the treasurer is allowed to add property from previous years if it is somehow left off.

Once the county owns the property, they can’t sell it until a redemption period has passed. The general provision is listed below.

(a) (1) Except as provided by paragraph (2) and subsection (b), real estate bid off by the county for both delinquent taxes and special assessments, as defined by subsection (c), shall be held by the county until the expiration of two years from the date of the sale, subject only to the right of redemption as provided by this section. (source)

There is an exception for property that is classified as a “homestead” to give it a three year redemption period instead of two. Also homestead’s can be partially redeemed whereas that doesn’t appear to be an option for non-homestead property.

Now here is where things get interesting. If property was not bid off to the county, then the beginning of the redemption period was not triggered.  If the beginning of the redemption period was not triggered, can the county foreclose and sell the property at the sheriff’s auction?  

I expected there to be some type of paper trail or some documentation attached to the deed of properties sold to the county, but that doesn’t appear to be the case. I’m not trying to imply that there was something wrong with the way the bid off process occurred, it is just different than what I’d expect. It does, however, make sense that sale to the county for unpaid taxes might be different than sale to an individual. If someone tries to sell property that is owned by the county, the abstract work involves looking into any back taxes.

Obviously the redemption period is a safeguard for citizens to give them a reasonable amount of time to redeem their property.  So it isn’t something you’d want to circumvent. As a non-lawyer reading the statutes, it would appear that people with properties that were not listed in the paper would be well within their rights to ask to see proof that the property was actually bid off to the county triggering the start of the redemption period.

There is a provision in the law for cases where a name is left off of the list published in the paper. The property can still be bid off to the county even without being listed in the paper.

No irregularity or informality in the advertisement nor any error or omission in the listing of the names shall affect the legality of the sale or the title to any real estate subject to sale or sold for taxes under the act of which K.S.A. 79-2302 is amendatory, or under the act providing for judicial foreclosure and sale of realty by county. (source)

If you read the context of this statute, it appears to be referring to the “bid off” by the term sale and not the actual foreclosure where the property is sold to someone other than the county.

I asked the Bourbon County Treasurer what exactly constitues a “bid off” and “sale” in this situation. If I understood correctly it is a matter of switching all the properties over in the computer.

I did ask if properties on the payment plan that were left out of the paper in the past, had been bid off to the county and was told that they were. So according to the treasurer’s office all of the properties were correctly sold to the county regardless of whether or not they were published in the paper.

It is unclear what would constitute proof that the bid off and sale to the county occurred for a piece of property. This may be as simple as showing the computer history that indicates when the property was switched to being owned by the county. It does not appear that this information is something that can be seen from the tax search available to citizens.

So what does this all mean? Well, if you have property with delinquent taxes that was not listed in the paper for the past few years, the county is going to need to be able to prove that a bid off did indeed occur which would trigger the start of the redemption period. Obviously I am not a lawyer, so there may be precedences or other laws that would come into play.  Either way, the county needs to be careful how it handles attempting to foreclose on property that has not gone through the normal publication, bid off and sale process.

 

The original scan posted of the payment plan documents had 140 contracts. I mentioned at that time that there were some documents that may have double fed into the scanner as I had been billed for 143 documents. After going back through and double checking for anything that hadn’t made it to the posted PDF, I added eight more contracts bringing the total number to 148.

I apologize for the error and want to stress that it was an issue with scanning on my end of things–not something on the county side. You can download the corrected PDF using the link below.

PDF of Payment Plan Contracts

Susan emailed me to clarify why many of the contracts were not signed. Many were handled through the mail and people didn’t sign and return them after they were received. As long as the payment plan wasn’t letting people do anything that they couldn’t have done on their own, it really didn’t make a difference if they were signed or not. It may have helped people schedule out their payments, but that wasn’t something people couldn’t have done for themselves.