Ruling: Commissioners largely followed transparency law with county manager hiring

Sedgwick County commissioners didn’t illegally make a “binding decision” when they offered incoming county manager Michael Scholes the job last summer.

The County Commission did, however, violate a statutory requirement by failing to justify the use of a closed-to-the-public executive session for the decision on the open county manager position, the highest non-elected position in county government.

That’s according to a ruling Thursday by the Sedgwick County District Attorney’s Office.

In August, county commissioners reached a consensus that Scholes, a brigadier general in the U.S. Army, was the choice for the job during a closed executive session. An employee contract was sent to Scholes shortly after.

Two weeks later, county staff announced Scholes had signed an employment agreement. Commissioners then unanimously authorized Chairman Richard Ranzau to sign the agreement on behalf of Sedgwick County.

The Eagle asked the 18th Judicial District to investigate whether the County Commission had violated the Kansas Open Meetings Act (KOMA), a transparency law which prohibits governments from taking binding action in a closed session.

But Deputy District Attorney Ann Swegle says that reaching consensus, and the actions that followed, weren’t illegal under KOMA.

“The consensus decision that a conditional offer of employment should be extended to Mr. Scholes was not a binding action,” Swegle wrote. “No legal obligation was imposed on the Board or the County because of that decision.”

“Simply put, consensus did not equate to binding action under these facts,” Swegle wrote.

Swegle says because the county commissioners could have rejected Scholes’ counter-offers, it was not a final action.

The ruling does say the county commission did not follow KOMA properly when it broke into the private meeting without providing a justification, such as protecting the privacy of those in employment negotiations.

County counselor Eric Yost says he will work with the district attorney’s office to craft new language with the motions that take commission meetings into a private session.

“If there’s any fault here, it’s with the form we prepared for the commissioners,” said Yost, who acts as the commission’s lawyer.

“But obviously the main issue is whether or not they took binding action in executive session and she found that they did not,” Yost added.

The Eagle’s attorney, Lyndon Vix, who filed the complaint, said the decision did not address “the heart of our complaint.”

“They definitely made the decision to extend him an offer in that executive session,” Vix said. “And that is a decision that I think should have been made in open session.

“It gives government bodies the ability to make all sorts of ‘preliminary’ decisions in executive session and to take action based upon those decisions, as long as the ultimate decision is approved in open session.”

Scholes will begin his job at the county Monday.

This story was originally published November 5, 2015 at 7:49 PM with the headline "Ruling: Commissioners largely followed transparency law with county manager hiring."