Closed meeting preceded Sedgwick County’s job offer to Army general

Commissioners appointed a one-star U.S. Army general as the next county manager on Sept. 2.

But they green-lit the job offer two weeks earlier in a meeting closed to the public.

Sedgwick County officials say their choice of Brig. Gen. Michael Scholes over three other finalists Aug. 19 was non-binding and did not violate an open meetings law meant to keep local government decisions in the public view.

Advocates for government transparency say commissioners excluded the public from the process by acting in a closed session, potentially skirting state law.

The Wichita Eagle has asked District Attorney Marc Bennett and Kansas Attorney General Derek Schmidt to investigate whether commissioners violated the Kansas Open Meetings Act.

The county manager is the highest unelected position among more than 2,600 county government employees. Scholes will be the first new manager in almost 25 years.

After winnowing the field from 85 applicants to four finalists, commissioners decided in an executive session to send Scholes a job offer, said Ron Holt, the acting county manager since William Buchanan retired in June.

“It was decided in that meeting he’d be made an offer,” Holt said. The meeting he referred to was Aug. 19.

Unlike regular meetings, executive sessions are closed to the public and the media. Minutes are not kept and the specific topics to be discussed are typically not disclosed.

County staff sent Scholes an unsigned employment agreement on Aug. 24. Scholes returned it with his signature on Sept. 1.

Commissioners voted to authorize Chairman Richard Ranzau to sign the employment agreement – hiring Scholes at a salary of $165,000 – in an open session Sept. 2.

Scholes is slated to start work by mid-November.

‘Binding action’

The Kansas Open Meetings Act, or KOMA, prohibits government agencies from taking “binding action” during sessions closed to the public.

Randall Allen, executive director of the Kansas Association of Counties, said that commissioners in Kansas counties generally “can’t make a decision in a closed session. They just cannot do that. That’s not legal.”

The legal issue is whether extending a job offer counts as a decision or action.

“Whether it is legal for a governing body to send an employment agreement to a potential appointee based on a closed session discussion is a gray area of the Kansas Open Meetings Act,” Allen wrote in follow-up email. He deferred to Sedgwick County’s staff and legal counsel.

Sedgwick County staff and commissioners say the final decision was made in the public view Sept. 2.

“All the binding action in this case was taken in an open meeting,” acting Sedgwick County counselor Mike Pepoon said.

“I’m confident that we followed the law,” Ranzau said.

Lyndon Vix, The Eagle’s attorney, wrote in the letter to Bennett and Schmidt that Sedgwick County commissioners, in essence, selected who they wanted to be county manager in a closed session.

“This decision was ‘binding’ in that the action decided upon – the extension of an offer – did, in fact, take place,” Vix wrote.

Mike Merriam, a media attorney in Topeka, said that although a job offer isn’t necessarily a binding action, commissioners made clear who they wanted in an executive session.

“As a practical matter, I think it’s pretty clear the county made a decision,” Merriam said.

Holt said the process was still ongoing after the county sent an offer to Scholes.

“They (commissioners) were still deciding until he accepted it,” Holt said. “... If he had turned it down, then they would have had to go back and see who was the next person they wanted.”

Commissioner Jim Howell also said sending Scholes an offer was not binding.

“We’re not making a decision so to speak, we’re simply saying this is what we like,” Howell said.

Ron Keefover, president of the pro-transparency Kansas Sunshine Coalition for Open Government, said he doesn’t think commissioners made an illegal binding action in August.

But Keefover said county officials could have been more transparent by announcing they had extended an offer to one of the finalists, even if they didn’t identify the person.

“I think the perception of openness would have been greatly enhanced if they would have, following the executive session, reconvened in a public session and say ‘we have directed … to extend an offer,’ ” Keefover said.

‘There was a consensus’

Commissioners can discuss which applicant they want to hire in closed meetings and reach a consensus if they want to, Merriam said.

That’s all the county did when it offered Scholes the job, Pepoon said. The law allows staff to get a consensus from elected officials to move forward with hiring someone, he said.

“There was a consensus that we gathered from the commissioners in executive session that they wanted to go with Scholes,” Pepoon said.

”You’re always getting consensus and decisions being made in executive session, which I would not consider binding action under the law.”

Vix said, “the problem is not reaching a consensus in executive session, it is taking official action based upon that consensus. That is a violation of KOMA.”

Commissioners have praised the process they used to select a county manager.

The county hired executive recruiting firm S. Renee Narloch & Associates in February to direct the search.

The county announced four final candidates in early August. Those candidates met with commissioners and two panels of community representatives and county employees on Aug. 17 and 18.

Sedgwick County did not host a public forum for candidates to answer questions from the public, unlike searches for Wichita’s city manager and police chief and the Wichita school district’s superintendent. Allen said public hearings over appointments are “less apt to happen in a county” than in other forms of local government.

After commissioners approved offering the job to Scholes, Holt began negotiating a salary and benefits with him.

Pepoon said this was the best process to select a county manager.

“Were we supposed to come out and say, ‘We’re going to go with Michael Scholes,’” Pepoon asked. “‘Now go out and negotiate a contract?’”

The city of Wichita did do that in 2008, when it hired its current city manager, Robert Layton. The council voted 4-3 to select Layton over two other finalists during an open meeting Nov. 18. Three council members then negotiated salary and other details with Layton, who did not sign an employment contract until Dec. 18.

Howell said approving a job offer in an open session would not make sense.

“It would seem really cumbersome and difficult,” Howell said. “I know we would like to be open but I’m not sure that necessarily makes sense to me.”

Keefover said it’s important for local government to be transparent with the public about how top staff are selected for employment.

“Whenever possible, the people need to know what is transpiring with their county government.”

This story was originally published September 14, 2015 at 6:35 PM with the headline "Closed meeting preceded Sedgwick County’s job offer to Army general."