Executive sessions
Back in October, we looked at whether or not an executive session was illegal. Part of the argument was that attorney client privilege can only be used when no one other than the client is present. The County Attorney gave me a copy of Attorney General Opinion 92-56. The opinion relates to KPERS, but it does establish that the “client” can include any employee or elected official off the county.
With regard to whether KPERS staff or investment managers may be present in an executive session called pursuant to K.S.A. 75 – 4319(b)(2), K.S.A. 60-426 addresses the attorney client privilege and subsection (c) of that statute recognizes that this privilege may extend to staff or officials of a corporate client. K.S.A. 74-4903 creates the KPERS as “a body corporate. . . .” Thus, KPERS staff meet the definition of client. Such staff may therefore be permissibly present during an executive session without destroying the attorney-client privilege.
So the executive session was legal from the standpoint of falling within attorney/client privilege and our suggestion that the County Treasurer wasn’t allowed in the meeting was based on a misunderstanding of whether Attorney Dan Meara was representing the Commissioners or the County. Since he is representing the County, any County employee or official can be present.
Special thanks to County Attorney Terri Johnson for taking the time to explain this and point out the section of the Attorney General’s Opinion.
Unpaid Taxes
On November 15th, we looked at some of the other forms of unpaid taxes in the county. I had a few people point out that some of the businesses listed with unpaid taxes have been sold and are owned by different owners now. So don’t stop supporting someone just because the business name is on the list. It might be the previous owners who didn’t remit their sales tax to the state.
Let’s see, it takes 2 months to pull that elusive rabbit out of the hat and then it clearly states KPERS. The reason they gave for the executive session was TAX SALE, not employee issues. And since we have been told that the County Commissioners have no control over the Treasurer, I beleive this is disingenuous at best.
I had actually came across that decision on KPERS when doing my “research” but I really did not make a connection plus my concern was not so much who was privileged enough to attend but that you needed a special invitation to be present for discussing the tax sale, a subject that we had been waiting to hear on for some time and which we expected answers. We still do not have answers to the questions that were asked. So, is it willful disobedience to the law or just a lack of reading comprehension that is the problem?
The point was that it is legal to have an executive session because of attorney client privilege at a commission meeting and have the Treasurer present. There is no violation of KOMA because the Treasurer isn’t classified as a “third party”. Whether the topic was appropriate for the use of an executive session is another issue. However it does appear to fit the legal requirement. However, it doesn’t appear that an executive session for discussion of tax sale issues since this occurred. The discussion today was open to everyone.
@ Mark, your statement here doesn’t make any sense to me:
“However, it doesn’t appear that an executive session for discussion of tax sale issues since this occurred.”
Are you trying to say that since this occurred and was questioned by the taxpayers, that the commissioners have not done it again?
So, we should give them a pass?
If we want to talk decisions by the AG, try this one and see what you think: http://ksag.washburnlaw.edu/opinions/1996/1996-050.htm You can search decisions made regarding any topic at that website.
And yet another AG decision that applies to our disaster: http://ksag.washburnlaw.edu/opinions/2007/2007-010.htm
Sorry for the typo. I meant to say that it doesn’t appear that executive session has been used to discuss tax sale issues since the original issue where I was questioning the legality.
As far as I can tell, what they did is legal. Everyone who was present was allowed to be there under the KOMA rules for attorney client privilege. Also it appears that it was legal to invoke attorney client privilege given the fact that an attorney was conveying information with his client (the county). Also, the commissioners were acting on the recommendation of Mr. Meara who suggested they go into executive session. Since they didn’t know exactly what he was going to say, following the advice of their attorney seems prudent.
So I don’t think the commissioners did anything illegal. I personally feel that when it comes to discussing tax sale issues, everything should be as open as possible. I question the motivation for requesting an executive session, but that was something that came from Mr. Meara–not the commissioners.
The only thing I think they could have done differently is reveal what was discussed after the fact or have asked Mr. Meara why he felt executive session was needed in the executive session and then opened the meeting back up if it wasn’t necessary. But since I don’t know what was discussed in the meeting, something like this may have actually happened.
As far as I know, a decision on whether the meeting violated the KOMA has not came down from the AG’s Office regarding whether or not the tax sale details needed to be kept a secret from the public. Seriously, what details would need to be kept secret and is that not what created all of this in the first place?
As far as I’m concerned, we may never know since none of these meetings are recorded or fully put in the minutes as stated.
These meetings need to be recorded just like the city does. That way there is no misunderstanding or the commissioners asking Mark if he would not put something into the Fort Scott Biz.
I feel that when we questioned the title (TAX SALE) of the Executive Session, THEN would have been a great time for Mr. Meara to speak up and quote the KPERS ruling.
I have had several inquiries as to how much the county paid for an audit in the treasurer’s office. I called and ask yesterday and was told it cost $8,150 . This is the cost to taxpayers to find out that the statues were broken and the office was not handling our tax money correctly and we are still waiting to hear from the Att. Gen. and KBI. We are sure when the commissioners hear back , they will call us as they said.
At that price, $8,150.00, you know there was a lot more to the report than that little summary that was passed out or so I would think. That the investigation continues, I believe, that is indicating that there were red flags in the paperwork that went forward to the AG/KBI. With just the short report that we saw, I could numerous “opportunities”. I am going to hold off paying my taxes to see if we get an answer because giving that office money is like throwing it into a bottomless pit. “Around and around it goes and where it stops, nobody knows!” If anyone still has additional information for the AG/KBI, please step forward with that and become part of the solution. This MUST stop!