Written by Don Ratzlaff Tuesday, 20 October 2009 13:26
The Kansas Attorney General’s Office has determined that violations to the Kansas Open Meetings Act did occur during events leading to the dismissal of Harry Bennett as a member of the Marion County Public and Law Enforcement Committee in late September.
The request from Bennett to investigate possible KOMA violations went first to Marion County Attorney Susan Robson, who forwarded the request to the Kansas Attorney General’s Office for evaluation.
In an Oct. 13 letter to Robson, Michael J. Smith, assistant attorney general, confirmed that violations did occur, and that “the most appropriate action (is) to seek written assurances from your (Robson’s) office, the commissioners and members of the committee that such a violation will not occur in the future.”
In addition, the letter asks the county commissioners and members of the committee to review KOMA guidelines and seek the advice of the AG’s office if any additional questions arise.
In its analysis, the AG’s office concluded:
n the citizen’s committee is a subordinate group of the county commission, and thereby is subject to KOMA.
n KOMA was violated when the committee entered an executive session without making, justifying or approving a formal motion to do so.
n KOMA was violated when the committee discussed Bennett in closed session because Bennett is not an employee of the council, so “discussion of non-elected personnel” would not apply as a legal rationale for an executive session even if a formal motion had been made.
The letter stated that attorney general’s office did not find evidence that the commissioners had discussed the situation with Bennett outside of a noticed meeting or execution session, as was alleged in the complaint.
“There is no evidence that a majority of the commissioners engaged in any pre-meeting discussion with Mr. Bennett,” Smith’s letter stated.
Action in question
The issue arose over concerns by the committee that Bennett had exceeded his authority as a committee member by asking a friend, who has professional training, to offer an opinion about whether a vacated building once used as a lumberyard in Marion could be converted for use as a jail. Bennett contacted the owner to gain access to the building for that purpose.
During its Sept. 9 meeting, the committee asked all non-committee members to leave the room so the issue could be discussed in private. No minutes were taken at the meeting, no formal motion was made to enter into an executive session, and no vote formal vote was taken for that purpose.
The committee unanimously determined during that meeting to request Bennett’s removal.
Bennett was not in attendance at this meeting.
On Sept. 18, County Commission Chairman Dan Holub asked Bennett to attend the commission’s Sept. 21 meeting. At that meeting, the committee’s concerns were discussed and the commissioners asked Bennett to resign.
After Bennett refused to do so and left the meeting, the commissioners voted to remove him. Bennett received notice of his removal Sept. 24.
Surprised by ruling
Holub said Monday he was surprised to learn of the KOMA violation because he had never considered the committee a public body.
“Unfortunately we took the common-sense approach that it was not a governmental committee—it was an advisory committee,” Holub said.
“Speaking for myself, I never thought it was going to be an issue,” he added. “All (the committee) would do would be making recommendations. It was very informal; there were no bylaws. It was no permanent thing, but they had their own general rules that they voted on and put into place.
“We told them it theirs to run.”
Holub said it was his understanding that committee went into a closed session because “what they really didn’t want to do was have the discussion in the press.”
Robson declined to comment on the KOMA ruling before discussing the situation with commissioners.
Danny Flynn, chair of the citizens’ committee, was not available for comment Monday.