In my first article about zoning, we examined Beerbower’s statement, “Those that hold on to the outdated ideology that zoning somehow robs their freedom and right to do whatever on their land are shortsighted.” (source) We looked at whether zoning actually does nothing as he claimed or if it does change what you are allowed to do with your land. In my second article, we examine why rational people might be both for and against zoning and how, even if everyone were to assume that the current commissioners were incredibly competent and would fully represent their interests, some people may still side with Jefferson’s core principles regarding government. Commissioner Beerbower may consider Jefferson to have “outdated ideology” and be “shortsighted,” but, just like there are rational reasons to want zoning, it isn’t unreasonable for someone to agree with Jefferson.
Given we’ve considered zoning with a premise of the commissioners acting in the very best interest of the county, it is worth considering whether or not that premise holds.
In November, the three commissioners-elect, David Beerbower, Leroy Kruger, and Brandon Whisenhunt joined local citizens Bob Casper, Katie Casper, Timothy Emerson, Samuel Tran, Karen Tran, and Michael Wunderly in suing the county commissioners and the solar companies to try to undo the actions of the then-current commission. The details of the case are interesting, though for the sake of this discussion, it shouldn’t matter too much what you think of the merits of the case. What we are going to look at is how you are being represented as a citizen of Bourbon County.
On 12/30/24, the lawyer representing the county made a motion asking the judge to dismiss the case because the lawsuit (filed by the three incoming commissioners and some local citizens) “fails to state any cause of action or set forth facts sufficient to support any claim under Kansas law.” The way that a motion to dismiss is handled is that the judge has to “pretend” that the plaintiffs can prove every single thing they have claimed in their lawsuit. If in this “pretend” scenario, the plaintiff still wouldn’t win, then the case is dismissed. If there is some possible scenario where one of the plaintiffs’ claims could win, then the case is not dismissed.
So when the commissioners Beerbower, Kruger, and Whisenhunt took office in January of 2025, the county found itself in the absolutely ridiculous position where every sitting commissioner was paying with their own money to fund a lawsuit against themselves and then using taxpayer money to defend against that lawsuit. I’ve heard people argue that they didn’t know they were going to be elected when they filed the lawsuit, but since the election was November 5th and the lawsuit was filed November 20th, fifteen days had elapsed when the commissioners-elect could have recognized the gross conflict of interest and asked to be removed from the lawsuit. Even if they were sympathetic to the cause of the other plaintiffs on the lawsuit, it is clear that they couldn’t play both sides at the same time without either behaving unethically to the other citizens who were plaintiffs or choosing to act against the best interest of the county as a whole.
Instead of defending the lawsuit with their recently hired county lawyer (who cost $110,000 per year), they retained outside counsel to defend the county. If they believed that outside counsel could reduce the costs of defending a lawsuit more quickly and at less expense than the recently hired county attorney, then it would have been their duty to the taxpayers to do so. However, their next action made it clear that wasn’t the plan.
Remember, there was an open motion asking the judge to dismiss the case if there was no way the plaintiffs could win, even if they proved every one of their claims. Every taxpayer in the county has a vested interest in making sure that the county doesn’t spend thousands of dollars of tax money on defending against a lawsuit that a judge knows the county will win ahead of time, no matter what the plaintiffs prove in court.
On March 3rd, 2025, the commissioner’s lawyer withdrew their motion to dismiss. This meant that they told the judge, “Never mind. Even if you know that we will win the lawsuit, we want the lawsuit to continue.” Why would commissioners do this? Why would they want to continue paying the outside lawyer to continue the case? Why would they ask the judge to NOT consider if there was any legal basis for the lawsuit? It clearly is not in the best interest of Bourbon County to drag out the lawsuit if it is clear what the end result will be. However, there are a few people who might want to drag out a lawsuit that the judge knows they can’t win. Those are the people paying for the lawsuit against the county in the first place, including the three commissioners-elect when it was filed.
The fact that the commissioners intentionally filed a lawsuit, knowing they would use their own money to sue themselves and then use your taxpayer money to defend against that suit, is unexplainable. The most gracious explanation is that they didn’t fully realize what type of situation that was going to create, but the fact is that they refused to drop off despite calls to do so on ethical grounds. The fact that they have hired an additional lawyer with your taxpayer money only to instruct him to ask the judge not to give an early ruling on the merits of the case appears to me to be completely unconscionable.
Given the clear preference for undermining the county’s defense of the lawsuit by withdrawing the request for the judge to rule on the merits of the plaintiffs’ case, it is hard to imagine any way that the commissioners on the lawsuit could be said to be operating in the best interest of the county.
Bringing this back around to the original point. In my previous piece, we assumed that you have no doubt that the current commissioners are acting completely and 100% in your best interest as a citizen and taxpayer of the county. That allowed us to look at zoning in a best-case scenario. But now you should consider the facts of the decision to file a lawsuit, knowing they would soon be in office and have to use your taxpayer money to defend against it. Consider that they hired an outside lawyer, not to expedite the end of the lawsuit, but to prolong it. Consider that the commissioners on the lawsuit have refused to drop off to avoid the clear conflict of interest.
Next, consider whether or not that track record gives you confidence in their ability to fairly represent your interests and the longterm interests of the county in implementing zoning. If it does and you support the idea of zoning, then by all means, give them your full support. However, if it raises concerns, then even if you support the idea of zoning, you should consider the track record of the two (originally three) commissioners who chose to file a lawsuit against themselves with their money and pay to defend it with yours.
Mark Shead
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BB-2024-CV-000075 – Motion to Dismiss
BB-2024-CV-000075 – Original Petition
BB-2024-CV-000075 – Withdrawal of Board of County Commissioners Motion to Dismiss