How many county commissioners make a meeting? One wants the attorney general to rule

The day after three Sedgwick County commissioners changed commission rules to allow three of five members to conduct a meeting, one of the dissenting commissioners said he’ll ask the attorney general to review whether that’s legal.

Commissioner Jim Howell, a former state representative, said he spoke with Attorney General Derek Schmidt at a drug summit meeting Thursday morning and asked if it was legal for the commission to reduce its official quorum from four to three members.

“I kind of surprised him with my question,” Howell said. “He said he thought it was a pretty good question.”

Howell said he foresees problems with a three-member quorum because it could allow any two commissioners to meet privately to discuss, and later take action on, county business if there’s ever a meeting where two commissioners are absent.

At the least, that is a “violation of the intent of the Kansas Open Meetings Act,” Howell said.

Howell said he expects to have his formal request, which must be done in writing on official government letterhead, submitted to the attorney general’s office Friday.

The attorney general’s office advises legislators and local officials on legal matters related to application of state law in governing. His opinions stand as guiding law until and unless they get overturned by a court.

The change in the quorum requirements is at the heart of a controversy now raging at the commission over an investigation into personnel practices that one commissioner, Richard Ranzau, has publicly confirmed is directed at firing the county manager, Michael Scholes.

After a 3-2 vote early this month with Howell and Ranzau dissenting, the majority commissioners had tried to set parameters for the investigation. But they were unable to meet in closed session because of a lack of a quorum; Howell and Ranzau boycotted the proceedings.

That blocked progress on the investigation for about three weeks.

On Wednesday, the commission added the quorum issue to the agenda and voted 3-2 to lower the quorum requirement. Moments later, the three commissioners who voted for it — David Dennis, Michael O’Donnell and David Unruh — broke away to a closed session to jump-start the stalled investigation.

Howell and Ranzau, who voted “no” on the quorum change, didn’t participate and stayed in the commission’s public meeting room during the closed session.

Dennis said he welcomes Howell’s move to ask the attorney general for an opinion because a county lawyer had researched the law and he’s confident the change in quorum will stand legal scrutiny.

“We’ve got a state statute that says you can do that,” Dennis said.

Dennis read the statute from the bench during Wednesday’s heated debate.

The county personnel investigation, being led by an outside counsel, is one of two investigations underway involving the commission.

The FBI has interviewed some commissioners and county staff in an inquiry into whether the effort to fire Scholes violated federal whistleblower laws that protect public employees who reveal wrongdoing by their superiors.

Memos obtained by The Eagle show that Unruh had asked County Counselor Eric Yost for his opinion on whether the commission could fire Scholes for providing information to the FBI last year.

Yost initially said that would be allowable, but then changed his opinion and advised that it could expose Unruh and the county to criminal and civil liabilities.

Unruh said he didn’t pursue any action against Scholes before or after those opinions and his motivation for supporting the personnel investigation is low morale and high turnover among county department heads.

O’Donnell was investigated by the FBI last year and now faces federal charges of wire fraud and money laundering in relation to his handling of campaign funds. He continues to serve on the commission pending a trial set to begin Jan. 29.

The county’s fight over how many members it takes to make a quorum dates back decades; and the four-member quorum was originally a way for the commission to skirt requirements of the Kansas Open Meetings Act.

In the 1980s, the act defined an illegal meeting as a outside gathering of a “majority of a quorum” of a government body.

That meant members of a five-member panel, like the county commission, couldn’t talk to each other about county business except in official meetings.

Sedgwick County dealt with that by changing its quorum from three members to four.

That meant two commissioners could talk about county business privately. It also meant that the commission couldn’t meet without four members at the table.

Then-Attorney General Bob Stephan and the Wichita Eagle-Beacon sued, arguing that raising the quorum violated the Open Meetings Act. They won at the trial court, but the Kansas Supreme Court reversed the verdict to the county’s favor on appeal in 1989.

The question became moot 20 years later in 2009, when the Legislature changed the standard for an illegal meeting from a majority of a quorum to a quorum. That meant two members of bodies of five or more could have private one-on-one meetings without violating the law.

Sedgwick County could have changed its quorum at any time since then without it affecting commissioners’ ability to meet with each other.

But it didn’t become an issue until the current case.

Dennis, who proposed reducing the quorum, said it wouldn’t have mattered if Howell and Ranzau didn’t try to block the personnel investigation by sitting out closed sessions on it.

Howell said he’ll ask for expedited response to his request for an attorney general opinion.

That can take up to 180 days, but “in this case I don’t think we want to take six months,” he said.

This story was originally published October 25, 2018 at 7:18 PM.