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.
I’m confused. It has been stated that the auditor’s report would be given to the commissioners and now they’re saying it has to go to the KBI and AG’s office? WHEN will the report be given to us, the taxpayers?
If they called attorney/client privilege for an executive session, who is the client? If the client is/are the commissioners, should that also include the taxpayers? They work for us.
Executive session is usually reserved for things that make sense why they cannot be discussed in public. For example, if the county is being sued because someone swerved to miss a pot hole, hit a tree and broke their leg, it would be very hard to formulate a legal defense if the prosecution could sit in on all the meetings between the county and the lawyers. However, this executive session was a bit different because it seems like it would be in the best interest of everyone if the tax foreclosure process was as open as possible. The Kansas Open Meetings Act requires that executive sessions state the exception that allows them to go into executive session, the subject to be discussed, and how long the executive session will last. Normally the subject is sufficient to explain why an executive session is needed, but that wasn’t the case on Friday–either that or I just don’t know enough to understand why it was warranted.
Regarding the auditor’s report, early on someone with a legal background told me that if there were potential criminal issues involved, the report probably would go to the state before the commissioners saw it. Of course, the question would be, who would determine that there was something criminal if it didn’t go to the state first. So perhaps it was just a matter of whether or not the state asked to see it or not. What does seem odd though is the fact that it was requested by the commissioners first. I am not clear how the state somehow got in between the auditor and his client (the county) unless the county actually made a decision to send the audit to the state before seeing it. Perhaps it is just how the legal system works, but I would have expected to see a motion to send the report to the state rather than get it directly. Imagine if you hired a CPA to audit your finances and give you a report. Wouldn’t it seem odd if they gave it to the IRS instead? I think you would have to give them specific instructions if you wanted that to happen. But for the county to give the auditor specific instructions to change their previous instructions, it would need to be a matter of public record and I can find no record indicating that occurred.
Mark: I was looking for something similar to this in regard to attorney-client privilege and came across this article and once you get to the bottom of the article, about the next to the last paragraph, it seems to clarify what was wrong with what Montgomery County did and I thought you might read it and tell me if this seems to you to be along the same lines: http://www.taylornews.org/mcc/2009/01/07/county-attorney-commission-reach-agreement-on-koma-violation/
I don’t understand why the tax sale would be privileged information since all of that is a part of KORA. I also found this decision, yet more clarification and after what I have read, it does not make any sense that this executive session was proper: http://ksag.washburnlaw.edu/opinions/1992/1992-056.pdf
Well assuming the topic was permissible, the people in the meeting were probably acceptable as the commission can call people in for advise, but they aren’t allowed to have any non-commission observers. It is hard to say what information about the tax sale would be considered privileged without knowing what was discussed. I don’t think anything was being hidden by the commissioners–in fact they weren’t even the ones who suggested an executive session. But even if the use of an executive session is legal in this situation, it might be better to try to keep things as open as possible just for the sake of transparency.