According to the report by Terry Sercer, a number of individuals overpaid their taxes–(including the County Treasurer by $346.32 in 2006) because of problems in the way the interest was calculated.  The report said that a number of individuals overpaid by around $800. (It wasn’t clear if this is the sum of all overpayments or an average per person.) These individuals should be receiving a refund in the coming weeks.

Mr. Sercer has provided a summary of his findings from his audit. FortScott.biz has requested the details from Bourbon County, but at first they were not available under Kansas Open Records Act because the Commissioners had yet to request them. Since the Kansas Attorney General hasn’t indicated that their investigation is complete, the Commissioners didn’t originally want to request this information (and thus make it public) in case it would damage the Attorney General’s efforts. After weeks of not hearing anything from the Attorney General’s office, the commissioners decided that the importance of getting the refunds made outweighed any potential benefit to the Attorney General and went ahead and requested the details which we published here.

When it comes to interest that should have been charged, but not paid it turns out that there are provisions in the law for this.

If you look at this opinion by the Attorney General, it talks about payment plans and makes it clear that neither the Commissioners nor any other officer of the county can change the amount of tax due or interest charges.

Thus, except for very limited exceptions, no board of county commissioners or other officer of the county has the authority to release, discharge, remit or commute any portion of taxes that have been levied or assessed against a person or property.

The exceptions have to do with bankruptcy and a situation where there was a very specific program established by law for Wyandotte County.

The law cited is KSA 79-1703 which says:

Except as provided in subsection (b) or as otherwise provided by law, no board of county commissioners or other officer of any county shall have power to release, discharge, remit or commute any portion of the taxes assessed or levied against any person or property within their respective jurisdictions for any reason whatever.

So if you owe taxes, no one can change what you owe other than changing the actual assessment. So what happens if Commissioners or another elected official does “release, discharge, remit or commute” a portion of the taxes?  For example, what happens if they mark the taxes and interest as paid when the proper amount was not collected? There is a provision for that.

Any taxes so discharged, released, remitted or commuted may be recovered by civil action from the members of the board of county commissioners or such other officer and the sureties of their official bonds at the suit of the attorney general, the county attorney, or of any citizen of the county or the board of education of any school district a part of the territory of which is in such county, as the case may be, and when collected shall be paid into the county treasury to be properly apportioned and paid to the county, municipalities, school districts and other taxing subdivisions entitled thereto

So basically if any commissioner or official releases a tax payer from paying taxes, they become liable for them personally and they can be sued by the Kansas Attorney General, County Attorney, any citizen of the county, or the board of education. This provision means that trivial amounts, while they can’t technically be written off, are unlikely to be something that will incur a lawsuit. If someone owes $0.32 on their taxes and a county official decides it isn’t worth pursuing and marks it as paid, someone could sue that person to recover the $0.32, but it would be a whole lot of effort for very little.

Notice that the wording of the law refers to “taxes assessed or levied.” It doesn’t specifically say that interest on unpaid taxes gets the same treatment.  However, the Attorney General’s opinion concludes with:

However, K.S.A. 79-2024 does not authorize the county treasurer to abate or forgive delinquent tax or interest on tax debts, which remains prohibited by K.S.A. 79-1703.

79-1703 doesn’t mention the word interest. The Attorney General appears to assume that the interest on taxes is treated the same way as the taxes themselves and cannot be changed.

It appears that if  a county official released someone from their tax obligation by marking it as paid when they hadn’t paid the proper amount, the county official becomes liable for the amount that wasn’t paid. The law says that the funds may be recovered from them and the sureties of their official bonds by civil action. I called the County Clerks office and asked if Bourbon County Officials are bonded. They are and here is the bonded amount for a few of them.

• $5,000 – County Commissioners
• $10,000 – County Clerk
• $25,000 – County Treasurer

Bonds are basically a type of insurance so that funds can be recovered if an elected official acts inappropriately. The county pays a premium for elected officials to be bonded.  This helps remove some of the risk for the county of an official making off with county money. If that were to happen, the bond company would pay the claim up to the amount of the bond and then it would be up to the bond company to track down and collect from the public official. So basically a bond allows the county to get its money quickly if something goes wrong without depending on whether or not an elected official has the means to pay.

So is a the bond company that insures Bourbon County elected officials on the hook for interest that was not collected? It may depend on the circumstances.

According to Mr. Sercer’s audit report, there was one individual who had their taxes marked paid even though they underpaid by around $5,000 for a two year period. If it could be proven that an official in the county marked the amount as paid even though it was too little, then it appears that the official would be liable to pay back the $5,000 that was not paid.

However, if it could be shown that the computer system incorrectly calculated the interest, it might be a bit more complicated because it might be hard to actually win a civil suit against the county official. The computer company might have some liability, but in Bourbon County, it appears that the system that was producing incorrect numbers was no longer under any type of maintenance plan which would likely remove the company from having any liability since they stopped updating the software when the maintenance plan lapsed. On the other hand, there may possibly be some liability if a county official signs off on something that has obvious error–regardless of what computer system generated them.

While it is not clear how the larger amounts might be treated in court if a civil suit were to be filed, the audit report mentions one instance where $1,130 in interest was not paid. According to Mr. Sercer’s report, it was written off based on a belief that the money probably wouldn’t be recovered in a tax sale. Based on KSA 79-1703 it appears that the official who wrote of the $1,130 could be compelled to pay that money back to the county (in which case their bond would probably be the mechanism that the county would be paid).

Marty Pearson showed the commissioners details on a training program on roads that KCAMP will pay for. The commissioners voted for him to take the classes that will be paid for by the state. The classes are offered through KU and are part of the Kansas Roads Scholar Program.

There still isn’t a date on the tax sale and the county is still waiting for Mr. Meara to put together the press release. There are a few dates in March and April when the Register of Deeds office will be gone to a conference so the the tax sale can’t be scheduled for those dates. The commissioners asked that these dates be communicated to Mr. Meara.

Sheriff Gray presented a request from Uniontown asking about putting a flashing light on  K3 and Maple Road. There have been two fatalities there recently. They have permission from the state, but the state said they didn’t have funds to pay for it. Uniontown is asking for assistance from the county for the approximately $5,000 cost of installing it. The state doesn’t have any money to pay for it, but they were hoping the county could pay for 75% of it. The commissioners acknowledged the request and said they would approve it, but didn’t have the funds to add it at this time.

The county has been asked for a Bourbon County representative for the Kansas 6th Judicial nominating committee.

The commissioners spoke with a company that will help audit the counties phone bills to see if they can recover any overpaid funds. The company will split the refunds with the county. The Commissioners made and passed a motion to use the service to look at their phone bill.

Some time back, FortScott.Biz requested a copy of the details from the audit showing the individual under and overpayment information. The commissioners were concerned that they might not want to request this information (and make it subject to Kansas Open Records Act) until any investigation by the the Attorney General was complete.

This information has now been made available and is being used to send refunds back to tax payers that overpaid. The commissioners said that they still hadn’t heard anything back from the Attorney General, but decided it was in the best interest of the county to request the information in order to issue refunds to those that overpaid.

Keep in mind that underpayment doesn’t indicate any type of problems on the part of the tax payer. They paid what they were told to pay. If there were inaccuracies, in the amount of tax they were told to pay or how the interest was calculated, that wasn’t the fault of the tax payer.

Based on previous conversations, it does not appear there is a way to recover underpaid taxes from the tax payers if their accounts were marked paid in full. This seems reasonable as it would be very disruptive to businesses and individual if the county could go back several years and say “oh we made a mistake, you now owe more money.”

Here is the pdf of the over/underpayments. If your name shows up as having overpaid, you should be receiving a refund in the near future.

The commissioners discussed the best time to plant fescue on some county land and the reclamation project at the old quarry.  There was also some discussion about moving the scale.  The county is getting the old crusher ready to go to the company where it was traded in on the new one.

The commissioners wanted to clarify that the East side of Cedar Creek Lake is still open and you can drive in there. The West side is closed to traffic now, but you can walk in to go fishing. The restrooms are also being removed from the West side. The decision was made by the rural water department because of the vandalism that was taking place.

The commissioners are still waiting for a list of properties and what day they will be sold from Dan Meara for the tax sale.

Joanne Long asked the commissioners about a money transfer from the general fund to the sewer fund, but they decided to hold off until they had more information.

In January Commissioner Coleman was voted in as chairman. Evidently Commissioner Jingles Endicott had made a motion to make Commissioner Allen Warren the new Chairman and the motion had been seconded by Commissioner Coleman. After some discussion Commissioner Warren convinced then Chairman Endicott to not vote for his own motion and the two of them voted Commissioner Coleman in as the new Chairman.

Carter Stegall from Running Foxes Petroleum can to discuss buying right of way to put in pipeline. They need to drill under a road and wanted to know what issues there were with going under roads. Marty Pearson said that they would be responsible to fill in any settling the happens afterwards. Commissioner Warren suggested a type of mix that had a good history of not sinking.

There was a discussion of what type of permits would be needed and if a bond was needed

The water district has voted to close Cedar Creek Lake to vehicles and take the bathroom out because of too much vandalism.  It will still be open for fishing, but people will have to walk down to the lake and the dock will be removed.. The plan is to move the bathroom to Elm Creek Lake.

Ron Center from the landfill came to discuss a request to the state about going 10 foot higher in the landfill. There are some changes that need to be made to meet the state requirements. Mr. Center has a flat fee bid for $1000 to do the work that is required.

The Commissioners were asked if the press release detailing the status of the tax sale had been created and they said they were waiting on Dan Meara.

They were also asked about the status of the request for a listing of the people who had overpaid and underpaid as determined by the audit. Joanne Long said that this information had been emailed to Fort Scott Biz, and the Commissioners indicated that the Treasurer was going to start sending out refund checks for the approximately $800 that had been overpaid. They pointed out that $300 was the Treasurer’s overpayment.

The commissioners voted to go into executive session for 30 minutes to discuss non-elected employees.