A resident recently asked a judge to order the Unified Government to fill an open commissioner seat, and UG attorneys responded with an answer April 10.
The UG answer was that the plaintiff, Carolyn Wyatt, lacks standing to bring the action; the petition fails to state a claim upon which relief can be granted; and the appointment of a person to fill the at-large District 1 position is a discretionary act, in which the court action, a writ of mandamus, is not an appropriate remedy.
The UG’s answer to the petition also says that the UG has made a good faith effort to fill the vacancy, but no candidate received the necessary majority of votes for appointment, and that the appointment is a “political question over which the court lacks or should decline to exercise jurisdiction.”
A Kansas City, Kan., resident and human rights activist, Alvin Sykes, was working with the plaintiff in this effort to ask the court to order the UG Commission to fill the open spot. The UG Commission seat has had a vacancy around a year, and did not fill the vacancy when a tie vote was reached last year.
“The worst was when they said it was discretionary,” Sykes said. “It defies plain English and definitions.”
The UG’s charter says the vacancy “shall” be filled, he said, which means it must be filled. The charter states the commission shall solicit recommendations from eligible voters in the district that is vacated, and the commission shall appoint a person to serve until the next election.
Sykes is hoping that a court will find a way to resolve the impasse reached at the commission level on selecting a replacement for the seat formerly held by Mark Holland, who is now mayor. There are several ways that it could be resolved, and Sykes pointed out that all over the country, coin tosses are used to break ties for offices.
Sykes said he believes a court has jurisdiction over the issue because it is a legal question and the UG charter is a legal document.
The UG’s answer also claims that the defendant, Carolyn Wyatt, does not have standing. Sykes believes she has standing because she lives in the 1st District at large, and has been denied her commission representative, while others who live in the 2nd District at large are not feeling the same pain.
He added that he may be looking for other plaintiffs to join the suit. The case is in Wyandotte County District Court.
State Sen. David Haley, D-4th Dist., said the UG attorneys’ answer “angers and saddens me at the same time.
“How could people refuse to bring representation for over a year? And how could they allow such weak excuses mistakenly believing they have the right to be brought in response?” Sen. Haley said.
Sen. Haley said he is considering joining the suit as a plaintiff.
“I certainly have been disaffected by the abject failure of the UG to name a successor to Commissioner Holland’s seat,” he said.
For example, he’s had to take a lot of constituent phone calls for county matters since there has been a vacancy, he said. The residents don’t have anywhere to go, because the commissioner position is not filled, and some of them call him with complaints about UG services, he said.
“The lack of an at large commissioner has greatly increased my workload as a state senator in the same district, so that disaffects me,” Sen. Haley said. “I’m under-represented myself.”
He had some strong words about disenfranchisement of the voters in the 1st District, at-large district.
“The attorneys that wrote this answer should leave that office and go work for Kris Kobach because disenfranchisement has underscored his administration as secretary of state,” Sen. Haley said. “That seat should have been filled a year ago.”
Through the years, the Unified Government ethics administrator has examined the happenings at City Hall, at times citing UG commissioners for violations of the UG’s code of ethics.
On Thursday night, some commissioners proposed changes to the UG’s ethics code, with some in favor of doing away with the ethics administrator position altogether.
Some commissioners also said they wanted:
– Due process in matters appearing before the ethics administrator;
– More specific language concerning the prestige of office rules;
– Review of recusals from unpaid boards – concerning UG commissioners who are members of community boards who do not have a financial interest in them;
– More specific language on number of applicants needed in the applicant pool for ethics commissioners.
At the same time, some commissioners proposed limiting the mayor’s power by allowing the commission to terminate the UG administrator, if there are enough votes. Currently, that requires the mayor’s approval
Some commissioners also want the ability to place issues from individual commissioners on the agenda. Currently, they must have the approval of the mayor to be on the agenda.
Expressing support for some of the changes that were proposed were Commissioners Hal Walker, Ann Murguia, Jim Walters, Mike Kane, and Angela Markley. No action was taken at the meeting.
Some UG commissioners received letters from the ethics administrator after they made a public endorsement of Commissioner Murguia in the last election.
UG commissioners serving on community volunteer boards
Mayor Mark Holland said he had a different view of some of the issues, such as recusals from volunteer community boards.
Holland said he felt that as a member of the Mt. Carmel board, although he did not have a financial interest in it, he had a fiduciary responsibility to the community board, and so he stepped down from the volunteer board before taking office to avoid potential conflicts of interest as a Unified Government commissioner.
Commissioner Walker said that the UG is engaging in a fiction when it says an elected official may have a bias when serving on a community board, and that the bias goes away just because he steps down from board member to a member of the organization. He and Commissioner Ann Murguia have ties to the Argentine Neighborhood Development Association, and occasionally step aside on votes.
Ethics here ‘reacting to situations’
Commissioner Murguia pointed out that there were similar situations with different interpretations of the ethics code.
For example, a commissioner requested to appear in advertising to promote Pittsburg State University and was told it wasn’t possible, she said. Another commissioner asked to be in an ad for Donnelly College and was told it was allowed, she said.
She said where ethics are concerned, the local government often just reacts to situations that occur, waiting until something drastic happens to react to it.
“I’d like to see an ethical government where it actually becomes part of our culture,” she said. “I want to see ethics implemented in how we hire people, how we promote people, how about how we treat people, with dignity and respect?”
‘A little cloudy’
Commissioner Tarence Maddox, who was censured by the legislative auditor after that action was recommended by the ethics administrator, said that there should never be a UG employee who can put together a censure of a UG elected official.
He said UG commissioners make budget decisions concerning the departments, including the ethics commission.
“It just seems a little cloudy,” he said.
He and some other commissioners said that Kansas City, Kan., is one of only one or two cities out of 627 in Kansas that has its own ethics department. The rest go through the state’s ethics commission.
When asked later if he thought the public should vote on changes to the ethics or charter ordinances, Maddox said the community should vote on the at-large commissioner position that is still vacant.
Maddox and other commissioners took the opportunity Thursday night to ask Ruth Benien, UG ethics administrator, several questions about procedures and the ethics code.
Maddox said he would like to see the person who investigates ethics violations to be certified in investigation.
‘In a different place now’
“It’s 2014, it’s another day, we need to do something different,” Commissioner Kane said.
He mentioned the building of Village West, the casino and the Speedway. He said, “We have to move on.”
“It doesn’t help when the outside folks who are no longer elected stir up the trouble,” Kane said.
Commissioner Markley said she feels the city and county are in a different place now, with more public trust, as compared to when the new government was started.
She suggested taking the money the UG is spending on internal ethics, and spend it on an employee to handle open data. The UG then could use the state’s ethics commission.
Judge Wayne Lampson, who is on the local ethics commission appointment panel, said, “I’m not sure that we’re as far along as you suggest.”
He still hears people here saying they don’t trust elected officials, he added.
“And the state’s commission is appointed by Gov. Brownback. I’m not sure he has the best interest of my community,” Judge Lampson said, to a lot of applause. According to statute, the state commission includes two members appointed by the governor, one by the president of the Senate, one by the Speaker of the House, one by the minority leader of the House, one by the minority leader of the Senate, one by the chief justice of the Supreme Court, one by the attorney general and one by the secretary of state.
Keeping the local ethics administrator
“I don’t think that’s a good idea,” Mayor Mark Holland said about eliminating the local ethics administrator position. “I would be fine if we were the only city not only in the state of Kansas, but in the nation, that had an ethics board and an ethics administrator,” he said.
The differentiation between legal and ethical, to be above the appearance of impropriety, is a valid and important role that the ethics administrator, ethics commission and legislative auditor provide.
“I think it is very smart that when the people voted in the charter to implement an ethics commission and legislative auditor, they made it very clear that we didn’t just want a good government, we wanted an ethical government,” Holland said. “And that standard is a standard that I do not want to back off of, it is a standard that I think we should continue to lead, and if there are other communities in our state that do not have this, I think they need to get on board.”
There are more than 600 other cities in Kansas using the state ethics commission.
“I don’t think they’re going to pay the level of attention and the level of detail that citizens of this community expect from ethics day in and day out,” Holland said. “Those built-in checks and balances are part of what makes the democratic experiment in America work. I value it, I’ll fight for it, I believe in it. I think we need to keep it and continue to support it in our decisions.”
Commissioner Walker said the ethics code was not inscribed in tablets and handed down. It was written by people including himself (when he was the UG attorney). It was politically negotiated with office holders, he said. Walker said he would agree with keeping the ethics administrator’s position.
Outside review of Wyandotte County issues
Issues need to be reviewed by an unbiased party, and the best way to do that is at the state level, Murguia said, adding she would like to raise the ethical standards in Wyandotte County.
“I guess some people would say it’s rather Wyandotte County-like to take the position that we should just take care of everything within our own borders and not ask anyone from the outside to look over our shoulders,” Commissioner Walters said. “I think we put our ethics people in a very tough situation when they have to cast judgment on people they interact with, and people who they know their sister-in-law.”
Commissioner Kane said, “It is better if somebody outside says, ‘Hey, you made a mistake.’”
Commissioner Jane Philbrook said it has almost brought her to the point of sadness that as a government, “we’re having trouble respecting ourselves.”
“I am not going to relinquish the possibility of having our own ethics people here,” she said. “I think there are things we can change or tweak in our system to make it work a lot better.
“I respect everybody here … for coming and having opinions,” she said. “That’s why this will work because you’ll keep our feet to the fire, and that’s what I expect you to do.”
‘Written by the people, voted on by the people’
A number of community members, including former Mayor Carol Marinovich, were in the audience at the 5 p.m. meeting. There was no public comment time on this topic.
Former Mayor Marinovich said afterward that she attended the meeting because the two issues concerning ethics and the charter ordinance were on the agenda.
She said she comes from the perspective of the Consolidation Study Commission, where people from the community did research and held many public meetings with opportunity for public input. The meetings were in different geographic areas to make it easy for people to attend, she added.
“So coming from that perspective, I believe the charter we currently have was written by the people and voted on by the people,” Marinovich said. “Any major changes should be handled the same way.”
Also, at this time, she doesn’t hear any people complaining about it, she said.
Terminating the UG administrator
Some commissioners also addressed the issue of changing the charter ordinance so that the commission, not the mayor, could terminate the UG administrator. The current UG administrator received the unanimous support of the commission when he was appointed recently.
Commissioner Walker said his opinion was that the inability of a commission to terminate an administrator without the approval or initiative of the mayor is “dead wrong.”
He thought eight votes of the commission should be required to terminate the administrator’s contract.
Commissioner Kane agreed on the commission having this power, but he thought the right number of votes would be seven.
Commissioner Murguia said she thought six votes, a majority, would be enough.
Kane also would like to change the charter ordinance to allow commissioners to put items on the agenda, he said.
Currently, the agenda is prepared by the administrator and approved by the mayor.
“It almost sounds like the mayor has veto authority on any topic prior to being heard by the public,” Commissioner Walters said.
Commissioner Murguia said people are voted into office and their constituents think they have a level of authority that they don’t have. She said she would rather not sit there and be a bobblehead.
Mayor Holland opposed both proposed charter changes.
“I believe those are not small changes,” he said. “These are pretty fundamental components of our government.”
He said the city-county government here is a hybrid between a strong and a weak mayor form of government. An example of the hybrid is that while the mayor is the one who hires the administrator, it is subject to a commission vote, he said.
Mayor Holland said he has now placed everything on the agenda that had been requested earlier as commission priorities.
He had to schedule them around other items, so that this discussion on ethics and charter ordinance was pushed to the beginning of the second quarter. Budget-related items were discussed in the first quarter.
Mayor Holland cited consistency of leadership as a reason for the UG’s success. The form of government has been strong and successful, he said.
“It’s a unique and amazingly effective form of government,” he said.
Commissioner Kane said he thought the system was broken, and needed to be fixed. He added that all the commissioners wanted was what was best for Wyandotte County.
“When the entire group speaks, it speaks volumes, but when only one person has control over what hits the table, or what we can vote on, or what we can talk about, that’s not transparent,” Commissioner Kane said.
Commissioner Murguia, who ran for mayor last year, said, “I don’t think anybody up here is trying to do anything to you, take your power away or whatever. Nobody is asking to remove a veto. We’re just asking to be heard.”
The Unified Government Commission is scheduled to discuss changes to the charter ordinance and code of ethics at a 5 p.m. meeting Thursday, April 10.
The 5 p.m. meeting location has been changed to Commission Chambers, lobby level, City Hall, 701 N. 7th, Kansas City, Kan.
After the 5 p.m. meeting will be a closed, executive session on the ninth floor about labor negotiations.
The regular 7 p.m. meeting April 10 will be held in the Commission Chambers, lobby level, City Hall.
On the agenda for the 7 p.m. regular meeting:
– An ordinance authorizing issuing industrial revenue bonds for MS Kansas City (Main Street) for a skilled nursing and assisted living facility at 8900 Parallel Parkway.
– An ordinance to allow the UG to acquire property for the Missouri River-Jersey Creek Connector Trail Project.
– An ordinance certifying that the UG has sufficient legal authority to administer stormwater management programs that were agreed to with the EPA and state of Kansas.
– A question of whether an easement should be given or sold to the city of Edwardsville in connection with Edwardsville’s proposed development near the south side of 110th and I-70, which would require sewer service. The project would install a pump station on the south side of I-70.
– Authorization to apply for a grant to establish a mental health court, a four-year grant with up to $384,000 a year.
– A plat of Strawberry Hill Pointe, 4th and Armstrong.
– Disbursement of $23,961 of unexpended drug and alcohol funds to Requesting Mirror Inc. for a mentoring program.
– A report on emergency management operations and storm season procedures.
– A change in the amount of taxes for real property located at 7836 State Ave., Kmart building, owned by Sears Holdings. The value was reduced on the property from the Court of Tax Appeals. The tax was lowered from $141,399.70 to $127,939.68, a reduction of $13,460.02.
– A change in the amount of taxes for personal property property located at 5846 Kansas Ave., Mo-Kan Container Services. The value was adjusted on some trucks, based on their condition. The tax was reduced from $47,203.98 to $36,750.60, a reduction of $10,453.38.