County attorney determination: Osage City Council violated state open meetings law

The Osage County Attorney has determined the Osage City Council violated the state’s open meetings law last week and has offered a settlement agreement in lieu of prosecution.

According to a letter sent to city officials Friday, Osage County Attorney Brandon Jones determined the violation occurred at the Aug. 13 meeting when the council voted secretly to appoint a council member to fill a vacancy caused by the resignation of Rick Martin.

Prior to the vote at the meeting, Osage City Mayor Quintin Robert announced that he had received a request for the vote for the appointment to be secret.

After asking if anyone was present who wished to fill the vacant position, and noting Denise Lauber and Bruce Schoepflin indicated their interest, Robert said, “It’s been requested we do the vote tonight by secret ballot, so that’s how it’ll be.”

With Robert’s announcement, Osage City Council Member Becky Brewer questioned why the vote should be secret.

“I’d like to know why, I’d like to request we vote publicly,” Brewer said.

Osage City Council Member Leroy Stromgren responded to Brewer, saying, “It was my idea to do that.”

He noted the council had voted secretly in May 2012, when Martin was appointed to fill a vacancy left by Matt Brewer.

“We done that when we filled your son’s vacancy,” Stromgren said to Becky Brewer. “And the reason is I’d like to have a secret ballot, whenever we were voted in, it was a secret. I didn’t know if you voted for me or if I voted for you. And here, say I voted for one person and he or she didn’t get it and the other one did and that person knows I voted against them and so maybe there would be some hostilities about that. I don’t’ see any reason why it has to be public how I vote on this particular deal.”

“I think I would disagree,” Brewer said. “I think your constituents or the people in the city have a right to know how you voted.”

Stromgren disagreed, “Well, I think that would make some good gossip for them for the next week or two to figure out who voted for what. It’s still like the public, if we was doing a regular election, they wouldn’t know how we voted.”

“I still think we need to vote publicly,” Brewer said, with Osage City Council Member Ed Mueller saying he agreed with her.

Robert then took a poll of council members to determine how they would like to vote.

Brewer and Mueller both said they’d like a public vote, with council members Stromgren, Ed Berends, Duane Peroo, Rob Rowe and Linda Carson saying they wanted to vote in private.

The mayor then offered Lauber and Schoepflin opportunity to address the council.

Lauber said she ran for the council seat in April and “was very interested at that time. And as we all know we tied and I lost to the coin toss.”

Lauber and Martin had tied with 70 votes each, and the Osage County commissioners flipped a coin to break the tie.

Lauber said she has continued to be involved and informed about city business.

“I have an understanding of the issues you’ve been voting on and the path you’re going for,” Lauber said.

Schoepflin said he lives, works and has raised his family in Osage City, and currently serves on the city’s planning and zoning committee.

“I been active part of this for several years,” Schoepflin said, noting he had thought about running for city council previously, but other candidates had filed and he didn’t want to run against them.

“I’ve represented people in town at the zoning meeting,” Schoepflin said. “Several people asked me to try for the Ward 1 position, so that’s why I’m here.”

After the two candidates spoke, about six citizens spoke in support of Lauber being appointed due to the results of the April election.

Dee Robert questioned, “If it is government for the people and by the people, and the people voted for Denise and she lost by a coin toss, why wouldn’t she automatically be appointed?”

The mayor noted the council had the authority to appoint someone to fill a vacancy and “it’s fairly vague in how that’s done.”

Nancy Washburn questioned whether Schoepflin would have a conflict serving on the council, since he is employed by Peroo.

“As far as decision making, a lot of people probably think I’ll be persuaded by Duane,” Schoepflin said, “but really it will probably be the other way around. My involvement with Duane is really irrelevant here.”

After hearing from citizens, Mayor Robert asked the council members to record their vote on a blank piece of paper and pass them to him, after which he read the names as Brewer recorded the votes. The final tally was five votes for Schoepflin and two votes for Lauber.

Robert asked city attorney Rick Godderz if any other action was needed to appoint Schoepflin to the position.

“You already voted him in, you appointed him,” Godderz answered.

Records obtained from the Osage County Attorney’s Office indicate that two people filed open meetings complaints through the Kansas Attorney General’s Office against the Osage City Council the next day. The Attorney General received a complaint from Paul Adams, of Bonner Springs, at 9 a.m. Aug. 14, and another from Kathy Camarena, Osage City, at 11:04 a.m. Aug. 14. Another complaint was filed with the Osage County Attorney’s Office on Aug. 15, by Jeremy Gaston, Osage City.

In a letter dated Aug. 16, sent by Jones to Godderz, Osage City Manager Linda Jones, and Robert, the county attorney said he had received the complaints from the attorney general and Gaston. Jones said he investigated the complaints by talking with Godderz, Osage City Clerk Terri Fultz, and Gaston.

“I have determined that the Council did violate KOMA (Kansas Open Meetings Act) by taking binding action by secret ballot,” Jones wrote.

Jones said he had decided to attempt to “proceed informally rather than filing a court action in this matter.”

He said he believed the appropriate penalty for the violation was to ask the council to void the election of the new council member, and to void any other action taken by the council and voted on by Schoepflin.

He said he would further require that the city council receive training on the provisions of KOMA from the legal staff of “the Kansas League of Municipalities or the Kansas Attorney General’s Office … to be paid for by the individual council members and not the City.”

Jones also submitted a settlement agreement in which by their signatures council members agree they violated the law, will obtain training, and will engage in no further violations of KOMA.

The agreement also noted that should the council members engage in any further violations of KOMA, the agreement would become void and the county attorney could institute prosecution based on the council members’ admissions.

Monday, city manager Jones confirmed that city officials had been in contact with the county attorney about the council’s secret ballot. In reaction to those discussions, Robert has called a special meeting for 7 p.m. Thursday night during which all actions voted on at the Aug. 13 meeting will be reviewed and voted on again, including the appointment of a new city council member.

Other items on the agenda will include adoption of the 2014 budget and a related ordinance, appointment of utilities director Mike Gilliland and Peroo as director and alternate director for the Kansas Municipal Gas Agency, and acceptance of bids for the Nichols Road rehabilitation project.

In a post on Facebook Sunday evening, Ray Lauber, Denise Lauber’s husband, said they had received an outpouring of support from the community since last week’s council meeting, and he asked that citizens communicate with elected officials.

In the post, Ray Lauber said, “To begin the process of rebuilding trust in our elected officials, please join me, if you haven’t already, in peacefully and respectfully communicating the following to the City Council of Osage City: The people they represent believe in transparent, open government and expect no less of their representatives; we are paying attention to city council actions; and the voice of the people should be heard and considered by appointing Denise to the vacant Ward 1 city council position.”

Ray Lauber also asked citizens to attend the 7 p.m. Aug. 22 special meeting.

The statute violated by the council is K.S.A. 75-4318(a), which provides that no binding action by public bodies can be made by secret ballot.

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