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.

At the county commission meeting this morning there was some discussion about how the tax sale will proceed.

Dan Meara (who was county attorney until the end of 1985) will be handling the tax sale. Today they discussed the timelines and his contract. Mr. Meara pointed out that it is difficult to prescribe a specific timeline or to contractually agree to specific date milestones. Property where the suit is filed, but no one responds are the easiest to go ahead and sell. In many cases, property owners will go ahead and pay the amount owed when they get the notification of the suit.

Mr. Meara said he felt it would only take a few weeks to get the suits filed after he gets the information from the abstracting company.

Once the county files suit, people have to bring everything current to avoid the sheriff’s sale. It was unclear if the expiration of the redemption period or the filing of the lawsuit paperwork triggered the need to bring all taxes current.

If people do not respond to the suit, the county will win default judgement. Then those properties will need to be published in the paper three times. If the properties are still delinquent on their taxes, they will be sold. It appears that the soonest a sale could occur would be in February.

Mr. Meara will use the county postage machine and county letter head. The commissioners expressed a desire to see the sale proceed in a timely manner. Mr. Meara wants Commissioner Harold Coleman to be the auctioneer, but Harold wasn’t very interested in doing it.

The current properties that are being reviewed by the abstracting company are for 2007 delinquent taxes.   In talking with Mr. Meara, he believed that the county could auction off property with delinquent taxes from 2008 or earlier if they chose to do so.

Everyone has access to the basic tax search that is found here. However there are two other levels of access. For $120 per year you can get more details on each property. I believe this includes some information such as the type of construction, number of outbuildings, etc. If you are an appraiser, you can get access to the selling price of the property for $240 per year. The appraiser’s office wasn’t clear if limiting the higher level of access to appraisers was a legal requirement or just the county policy.

Not all states make selling prices public record. In some of those states charge transfer taxes based on the selling price that make it easy to calculate what the selling price was.

Currently there are 14 people with the the $240 access and 9 people with $120 access. This means the website brings in $4440 per year to the county.

Up until a month or so ago, the basic access didn’t list payments. The cost to see that information was $60 per year, but the commissioners opened that up to everyone and refunded anyone who had already paid.

Below is a link to a list of the delinquent taxes from 2010. This should be available soon on the Bourbon County website.  To the best of my knowledge this is the list that was given to the newspaper in order to print the list of names. At the end of the document are another list of names. This appears to be the people who were struck through in the original list because they were on the payment plan. This list was later printed in the paper.

List of Bourbon County 2010 Delinquent Taxes

Note: You aren’t legally allowed to use this list to try to sell things to people.

The cover letter states that the properties were to be sold to Bourbon County for the amount of taxes owed. Keep in mind that this is not the same as the sheriff’s sale. This sale means that the county owns the property, however the county isn’t allowed to sell it to someone else until the redemption period has expired. For homesteads that period is 3 years. For non-homesteads that period is 2 years.

Property owners are allowed to partially redeem their property by paying the oldest taxes due which will extend the redemption period by another year. This means that homestead owners can legally be up to three years behind on their taxes as long as they pay the oldest taxes before the redemption period expires.