Johnson County fights claim that commission broke open-meetings law as AG investigates

A slim majority of Johnson County commissioners are rebutting a fellow member’s accusation that they violated open meetings law by discussing staff salary raises behind closed doors. But three of the seven commissioners maintained their concerns about the closed session.

Kansas Attorney General Kris Kobach’s office is investigating Commissioner Charlotte O’Hara’s complaint that the board violated the Kansas Open Meetings Act (KOMA) in June, alleging members met in closed session to discuss general market adjustments to employee pay. Under state law, a governing body may only discuss individual employees in closed session, but not general concerns affecting all employees.

On Thursday, commissioners voted 4-3 to approve a response to the AG’s office, stating that the board legally met in closed session, only to discuss compensation for three high-level employees: the county manager, chief legal counsel and county auditor. The four commissioners deny having a general discussion of the salary schedule for all staff.

Peg Trent, county chief legal counsel, told commissioners on Thursday that the legal department determined the session complied with the law, and “now that’s up to the AG.”

Chairman Mike Kelly said that the statement is “wholly accurate and appropriate,” and that the county has been “transparent since the start of this investigation.”

“We may have a different opinions on best practices. Clearly we do. And that’s OK. I hope that we would have the opportunity to discuss those internally and not spend the taxpayers’ time and resources ... ” Kelly said. “That’s the key point. This is about the legality, not about best practices.”

But the three who voted in the minority said they had a different memory of the closed session.

“There’s no way I can vote and approve your statement when our statements don’t agree with each other,” Commissioner Becky Fast told Trent, arguing that the board discussed “policy” in the closed session, and that “we were not reviewing the county manager” as it typically would in a contract discussion.

The AG’s office requested that commissioners and some county staff answer questions in writing about what was discussed and whether it should have been done in public. The county will now submit its response, along with statements provided by all commissioners, for the AG to review.

Along with O’Hara, a conservative who unsuccessfully ran for chair of the board last year, commissioners Fast and Michael Ashcraft voted against the statement for the AG. It’s the same group that voted against going into closed session on June 29.

The majority voted to approve the session in June to discuss non-elected personnel, a general topic permitted under the open meetings act. They held the session before discussing and voting in public on a market-rate, 6% pay bump for county employees.

In public view, the commission also amended the agenda to add a vote on County Manager Penny Postoak Ferguson’s contract. They voted to give her a raise in line with the market-rate adjustment for everyone else, bringing her salary to $323,670.

Fast voted against the closed session, arguing that it is not “best practice” before considering an agenda item.

Kelly responded at the time, “I appreciate that. It’s perfectly acceptable under our rules and the Kansas Open Meetings Act, but appreciate your opinion.”

“It’s not opinion, it’s best practices,” Fast replied.

O’Hara at the time said, “I’m concerned that we are discussing things that should be discussed in open session.”

The AG’s office dismissed many of O’Hara’s concerns in her open meetings act complaint, but is investigating the issue of whether the general salary schedule was discussed in private.

In the response to the AG’s office, Trent said the commission appropriately met in closed session to discuss the pay of three specific employees, including herself. Any discussion of the general countywide pay plan, she said, was in the context of those employees’ salaries.

Trent said she prepared the slideshow that was presented during the June closed session, but was not present for the discussion. She said she regularly creates the presentations so that commissioners stay on topic and within the bounds of the law. Her department evaluated hundreds of pages of materials, as well as statements from those present in the meeting, to render a legal opinion.

“While individual commissioners may have preferred to discuss individual Board employees’ compensation in an open meeting, a majority of the Board voted to conduct the protected discussions in an executive session,” Trent wrote.

The slideshow presented during the session, which also is being provided to the AG, states, “The County Auditor, Chief Counsel and County Manager are overseen by the (board of commissioners). During this session we will discuss how the market study and proposed new salary table will impact those positions.”

Commissioner Jeff Meyers said, “I’ve never walked out of executive session feeling like we’ve ever violated KOMA. I still stand by that.”

And Commissioner Shirley Allenbrand commented on how the county is racking up legal fees and staff time by addressing a KOMA complaint filed by a fellow commissioner.

But Ashcraft told Trent, “That’s not how I remember it.”

“Most of the conversation, which is what struck me as odd, was in the retelling or reformatting of the pay adjustment system.”

Fast said in her written statement, “Johnson County residents have high standards and expect government to be beyond reproach through going above and beyond the statutory requirements for transparency. Johnson County residents want and expect best practices from their county government not just barely meeting the intent and spirit of the law.”

Trent said that despite commissioners having “different viewpoints” of what happened in closed session, “it did not appear to me to be a KOMA violation. But ultimately that decision is on the attorney general’s office.”