County Commissioners Move Forward on Tax Sales

The commissioners spent a good portion of this week’s meeting discussing the technicalities of the sale of tax-foreclosed properties.

The county currently has properties going back to 2020 that would be eligible for a tax sale.  The commissioners spoke with attorney Christopher McElgunn with Klenda Austerman, attorney’s at law.

McElgunn explained the service his firm offers to counties with properties that are in tax foreclosure. They will handle the entire process “from soup to nuts,” he said. His firm will contact the property owners whose taxes haven’t been paid and notify them of the county’s intent to sell them, should the back taxes and fees not be paid.

He said their primary goal is to get people to come in and pay their taxes before foreclosure. He gave information on several issues to the commission, including that only owners and mortgage holders have the right to try to have a tax sale of their property set aside by the court. In order to do that, the owner must be able to show they weren’t serviced properly with notice of unpaid taxes.

McElgunn also said that in tax foreclosure the county doesn’t give any warranties. The property deed comes from the court. For that reason, anybody who buys property at a tax foreclosure sale takes it with notice of all defects and it becomes the buyer’s issue.

McElgunn also said that he has been doing this job for 30 years, and in the last 15 years, he’s had 3 set aside motions filed and his firm won all three of those.

In discussing the county’s liability regarding these property sales, he said that the county has no obligations coming out of that tax sale after that property is sold, as a matter of law. If somebody comes in and says they weren’t served with process and they are able to get the sale set aside, the bidder gets his bid back, but the owner must pay all the back taxes and costs at that time.

McElgunn said that his service starts the lawsuit, making an initial filing for all the parcels that are eligible for foreclosure that year. They collect tax roll information and serve those people first to give them time to pay their back taxes, fees and costs on the property. In the meantime they get the title work from the title company, and add all the parties that the title work reveals to the lawsuit, serving them notice. Next, they make a showing to the court that they’ve made a reasonable attempt to locate them. That’s enough to withstand any type of challenge after the sale.

Commissioner Brandon Whisenhunt said, “We’re several years behind on having our tax foreclosure services even caught up, I believe. So we are looking for a way to start having these auctions and getting these back taxes.”

The county has approximately 180 tax foreclosure properties going back to 2020 and before.

McEgunn said his firm charges a per parcel flat fee of $300-350 per parcel which is added to the amount the owner must pay to redeem the parcel.  These services create an incentive for the owners to come in and pay all the taxes and interests, attorney fee, title company fee, and court fee.

Once properties are sold, the proceeds go into paying remaining costs. If there’s not enough to pay the attorney’s, the attorney fees are reduced to whatever is left to pay, passing the cost of the foreclosure action to the property owner, rather than the county.

He said that properties which don’t sell can be brought back up at a later date. They stay pending if they don’t sell at the sale, but they can be rolled into the next year’s sale. Alternatively, the county can also sell it as a private sale.

McElgunn agreed to come to a Fort Scott Land Bank meeting, followed by the county commissioner meeting on Feb. 24 to answer any further questions.

The commission tabled the issue until that in-person meeting, Feb. 24

Hospital Equipment Disposal

Commissioner Leroy Kruger brought a list of 10-12 items from Freeman, but there’s more that’s been collected from throughout the hospital. Upon speaking with the county attorney, Kruger suggested holding an auction to sell what can be sold before donating the rest of the unwanted items to a non-profit.

Kruger said the items range from hospital equipment to desks, chairs and fixtures. Some of the equipment is outdated and obsolete.

The commission voted to have Kruger continue working on equipment disposal by finding an auctioneer and date to hold the auction.

Public Comments

Clint Walker on Flags and Dispatch

Walker told the commissioners that the American flag, Kansas State flag, and POW/MIA flag are the only three that should be on a county building. They should have a light on them at night and in rainy weather and not be flown when they get ragged.

Regarding dispatch, he asked if the city [Fort Scott] pays for it’s prisoners when held in a county jail. He advised the commission to make sure it’s equal both ways for county use of city resources and city use of county resources.

Michael Hoyt on Elections.

When spending time in Topeka for county government day, he had conversations about holding a special election for the two new commissioners. “I don’t think anyone within the state would give a legal opinion to just anybody as to how to proceed,” he said. The Secretary of State is in charge of state and federal elections and local elections are left to local officials. The county elections officer is in charge of conducting them, but not in charge of making policies or procedures.

He urged the commissioners to move quickly, as the new districts leave large sections of the county unrepresented, based on the new maps. We should move ahead so that at the latest we could have the new ones seated by Jan. 1. 2026, he said.

Kruger asked, “If there is a chance of wrong doing or legality, in your words explain to me the rush to doing it right now as opposed to doing it in the regular cycle.”

Hoyt replied, “My only concern is mixing the partisan with non-partisan.” And went on to ask who would sue the county regarding the legality of a special election.

Kruger said the commission is accountable at the state level.

Beerbower said the reason he is opposed to a special election is that the parties pick people to run for the open commission seats, versus people picking people to fill the empty seats in a primary and then general election cycle.

“I think it would be beneficial to having the people pick these people, rather than a party,” said Kruger.

Hoyt and Beerbower agreed.

Budget Meeting Decisions

Susan Walker, County Clerk, asked the commission how they would like to handle the budget process, commenting that meeting usually being in March.

Whisenhunt said he would like to start earlier and have more time to work on it, saying the commission should notify departments to get their budgets together and then start work sessions with each department head.

Kruger voiced the idea of face to face work session immediately after budgets are submitted to get the discussions off on the right foot.

Beerbower wants to have a commission work session first to decide what the commission wants the department heads to bring to the meetings.

Kruger said he is in favor of detailed reports for each budget.

Walker asked if they wanted a work session to better understand fund accounting. Kruger replied, “Anything that teaches us what we need to know for this job is what we need to do.”

The commission scheduled a work session March 12 at 2 p.m. open to the public.

Other business

No County  Commission meeting will be held Feb. 17 for the holiday of President’s Day.

Whisenhunt talked with the commission about their upcoming work session scheduled for Feb. 19, saying that in light of winter weather, it may be cancelled. “I don’t want to put nobody in danger, trying to get here.”

He also asked the commission to look at the situation of Unique Road and 95th Street, which requires a decision. Unique Roa was closed, per county maps, in 1954. It goes 1000 feet past 95th St. beyond that is a house and the owner wants the road re-opened. That is a cost the county would incur, unless the commission chooses to use the state law that allows for telling the homeowner that he can build the road up to county standards first and the county will maintain it afterward. Whisenhunt asked commission to make a decision soon.

He also said that the commission is now “past our 2 and 3 hour long meetings,” and proposed changing the meeting format to a short business meeting every other week, followed by a work session, and hold full-length meetings in between.

Every Tues. at 7:45, Whisenhunt is on the radio. He asked the commission who could step in for him if he can’t make it. Both offered to cover for him.

Commissioner comments

Kruger mentioned their joint meeting the other night. It went well. “But what I appreciated more than anything was that everybody in the audience were our county people that come to these meetings…I want to applaud you guys for being there.”

Beerbower clarified that the work being done at entrance to hospital is not on county property. Wood is being cut for the use of the wood. It is going to be cleared by Legacy.

BB-2024-CV-000075 is an ongoing lawsuit by all three members of the Board of Bourbon County Commissioners against the Board of Bourbon County Commissioners. The Commissioners are joined on the plaintiff side by six citizens and on the defendant side by four solar companies.

Jennifer Hill, the lawyer representing the Bourbon County Commissioners on the Defendant side of the lawsuit, filed a motion to withdraw as counsel because “the fact that since the filing of this lawsuit, the Board of County Commissioners of Bourbon County, Kansas is now made up of three individuals who are all also named Plaintiffs in the litigation. Plaintiffs Whisenhunt, Beerbower, and Kruger are the three elected board members of the County commission. Such continued representation violates KRPC 1.7.”

She went on to say that if the County Commission cannot retain counsel, they would need to appear at any future hearings personally.  KRPC 1.7 deals with situations where a lawyer discovers that representing a client creates a conflict of interest.  For example, any conversation Ms. Hill had with her clients of the County Commission as defendants of the lawsuit would necessarily be shared with three of the people who filed the lawsuit against the County Commission.

Rule 1.7 does allow  a lawyer to continue to represent a client even when there is a conflict of interest, but only if:

“the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal;”

This conflict of interest would appear to apply to any counsel that the County Commission retained. If that is the case, then the County Commission may be forced to represent itself.

Patrick Hughes of Adams Jones Law Firm in Wichita is representing the Plaintiffs.  If Rule 1.7 required Jennifer Hill to withdraw as counsel due to a conflict of interest, it would seem there would be a conflict by the counsel representing the Plaintiffs as well.

On 2/5/2025, three solar companies filed briefs supporting their motion to dismiss. They claim that the plaintiffs appear to be trying to make changes to their petition without following the correct procedures, failing to address the Defendants’ arguments, and having no standing to file the lawsuit in the first place.

The Responses to the Defendants’ Motions to Dismiss only serve to reinforce the notion that the sole basis of Plaintiffs’ claim is that they do not like the Agreements but do not have any actual, legal injury that entitles them to relief. Accordingly, dismissal is required.

BB-2024-CV-000075 – Defendant Hinton Creek Solar LLCs Reply Brief in Support of Motion to Dismiss

BB-2024-CV-000075 – Tennyson Creek Solar LLC Tennyson Creek Solar II LLCs Reply in Support of Their Motion to Dismiss.