January 24, 2023, Tuesday, 9:00 a.m.
The Bourbon County Commission met in open session with all Commissioners and the County Clerk present.
Mary Pemberton, Anne Dare, Clint Walker, Teri Hulsey, Charley Ballou, Michael Herrin, Michael Hoyt, Kim LaPorte, Deb McCoy and Jason Silvers were present for some or all the meeting.
Clifton made a motion to approve minutes from last week’s meeting. Nelson seconded. All approved.
Clifton made a motion to approve accounts payable for this week. Nelson seconded. All approved.
Jim requested an executive session. Clifton made a motion for executive session KSA 75-4319(b)(1) to discuss personnel matters of individual nonelected personnel to protect their privacy for job performance including 3 commissioners and Justin Meeks for 10 minute returning here at 9:11am. Nelson seconded. All approved. Clifton made a motion to return to normal session with action. Jim seconded. All approved. Clifton made a motion to adopt Resolution 06-23 defining employment status of exempt employees reporting to the Bourbon County Commission. Nelson seconded. All approved. Jim asked Justin to explain what this resolution means. Justin asked Jim to give some history on the topic. Jim stated that in the past, and still some current employees, are considered exempt. What that means is they don’t have a contract, they have a base pay that was agreed upon by the commission and the employee. They earn no vacation, but they can take vacation. It doesn’t accumulate on days as a regular employee does. I don’t want to use the word unlimited because I’ve never known anybody, we have some in other departments that are that way today. What this does is it changes the no contract for CFO, COO, Public Works Director and County Appraiser by state statute kind of, but also the Emergency Preparedness Director. There is no county employee that has a contract with the county commissioners. Clifton stated that we are just going back to what it was two years ago. Justin stated that this started 20 years ago, I wasn’t here, but I think you’re predecessor. Commissioner Fisher worked on this at length. To go back and build a vacation structure where you would have to pay for unused vacation time would cost the county close to 2 mils, about $178,000. So, to attract good people you usually have to have some kind of vacation schedule so you have to pay it out but this Road and Bridge Director, I forgot his name, he got a pretty good chunk of change when he left so the commissioners at that time realized we couldn’t afford it. So this has all been a matter of trying to find qualified people, build something that could potentially could be not abused, it hasn’t yet, but this unlimited thing has always been a weird thing for me but it’s worked and so without the money to have to pay off unused vacation time I think you’re left with not a lot of options. This negates any contract the county has with any employee at this point. Those employees could leave with they wanted to. They could try to enforce our contract but it’s going to be up to the chairman. He has the authority under this resolution to basically negotiate on behalf of the commission. Nothing can happen without the commission vote. Jim clarified that any action would come back to the full commission.
Eric Bailey stated he has a utility construction permit for Heartland Electric wanting to cross our right-of-way on 135th & Range. Clifton made a motion to allow all three commissioners to sign the application from Heartland Electric. Clifton asked are we setting a president. We don’t do this on every other one. Jim stated we haven’t in the past. Clifton said why would we do this one. I don’t want to set a president to do a resolution on every one of these. Topic was tabled until Justin returns. Eric stated they are pouring concrete for the north sidewalk. We’ve had some weather issues but we will get this done and move forward. Eric continued that they are having a lot of vandalism with road signs, especially out in the Bronson area. Each sign cost anywhere from $50 – $75 with labor on top of that. It is tax-payer dollars when we have to go back and redo these. Also, someone decided that they needed a gate to one of our quarries. They cut the chain and the gate is gone. This is the Thomas Quarry down in the southeast part of the county. They also tried to get a gate from one of the farmers in that area but couldn’t quite get it. Eric stated they are prepping for the snow tonight. They are predicting 2 – 4 inches and we are prepared to address whatever happens. Jim asked if we had discontinued the brine system. Eric stated we haven’t; but it is supposed to rain prior and it just washes it off. Eric stated Purple Wave will be here Thursday to look at our crusher and see about getting that listed. Also, out in our lot we have two truck beds that I would like to put on Purple Wave as well. One is for a white Chevy 2009 ¾ ton; also a red 1998 F-350. Eric asked if the commissioners were ok with selling the beds. The commission agreed. Eric stated that while he is here Thursday we’ll get those listed as well. Eric asked if there were other items that he found could he go ahead and put them on. Jim said to go ahead and put them on then when they discuss next week if they don’t want them on there they can be removed. Eric stated we got our side-arm mower up and going. We are working on the other one. Just got the parts for the other one and hope to get it going again. We are still waiting for parts on the new ditching machine. We’ve had some things down but with the first of the year we’ve been able to buy some parts and get things going. Jim asked Justin if they have to make a motion every time Eric wants to sell something on Purple Wave. Justin stated best practice would be yes since he is liquidating and would protect him. When you get rid of county property there are certain things you have to do so that would be best practice. Clifton asked Justin about the permit to allow Heartland Electric to cross our right-of-way. Justin stated his understanding is that the commission has to approve it. Nelson clarified that we were asking about making a resolution every time. Justin stated that this will be for future commission and others that can find the paperwork and know what happened on this day. Clifton made a motion to approve this application permit for construction for Heartland Rural Electric on 135th & Range. Nelson seconded. All approved. Nelson made a motion to allow Eric to put things on Purple Wave regardless of value as long as you come and tell us what items. Clifton seconded. All approved.
Mary Pemberton stated she is here to highlight what I consider to be a major problem in the government of Bourbon County. It’s not something new it’s been going on for years but in my estimation it accounts for much of the chaos and problems within this entity. The problem is the County Counselor. I don’t mean the position; I’m referring to the person. Justin stated if you are going to talk about me and my job we need to go into executive session. I’m an identifiable nonelected personnel. Mary stated you are being paid as a 1099 contractor. Justin interrupted stating I’m nonelected identifiable employee who is 1099. Mary stated if you’re 1099 you’re not an employee. Clifton stated he is a nonelected identifiable person. Mary stated he is a contract worker and contract workers are not. Mary said she would get the statute and come back. Jim called for a 10 minute break. Clifton stated he just got off the phone with the attorney from KAC. If you would like to talk specifics he recommended you do that with your commissioner and if your commissioner wants to talk about that in executive session we can ask you into executive session. He stated if you were going to talk specifics you do not have the right to talk about. Mary stated a 1099 employee is a contractor. Actually 1099 employee is not a legal term per the IRS or Department of Labor because they are contradictory. A 1099 employee is a contractor rather than a full-time employee. They are referred to as free-lancers. Kansas Attorney General states what is permitted. This is under question/answer on their website what is permitted under the nonelected personnel subject. The public body may only discuss it’s own individual employees and applicants for employment. They are not permitted to discuss elected officials, independent contractors, candidates for appointment. Mary asked the commission if they were disputing that he is a 1099 worker. Clifton said no that what I am telling you is we pay lots of money to KAC for advise and I’m telling you he said you cannot discuss a nonelected personnel whether 1099 or not we can not discuss in our commission meetings. Nelson stated he thinks Mary wants to talk about the difference between 1099 and an employee. Justin stated he would be listening very carefully to this discussion. Obviously, I have legal rights that are civil. I’m going to make that very clear. I didn’t talk to KAC but Mary Pemberton and I have a long history. There are things that happened with the wind farm. She made comments about me in open session that I could have done things with civilly. I’ve been doing this 9 years and at some point you get tired and worn out. Mary stated that she believes this contract person is being misidentified as a 1099 contractor rather than a W2 employee. The government has specifically set guidelines to distinguish who is eligible to receive a 1099 and who must receive a W2 as an employee. Just because you have an agreement that this person will be a 1099 employee that doesn’t make it so. Mary discussed rules on who is a 1099 vendor. She went over rules and common law rules that allow for 1099 vendor. Mary stated that employee is listed multiple times in the agreement. Justin asked Mary if she was reading from the 2022 contract. She stated yes. Justin stated he is working on a new contract currently. Mary asked if it was signed. Justin stated no. Mary stated the terms of the contract expires 1/10/23. In the event written notice is not given by either part to this contract 45 days prior to the termination date this contract shall be extended on the same terms and conditions as herein provided for an additional period of one year. Said contract shall continue thereafter for one year periods unless 45 days written notice is given prior to expiration. Justin stated if you want to make me an employee of the county it will cost the tax payers more money. Clifton stated a 1099 employee costs the county more money so you are suggesting to make him an employee. Mary stated she is suggesting that you properly classify him as an employee per the IRS rules because you are putting yourself at liability if you’re misclassifying employees. Nelson stated he sees Mary’s point in it may be perceived as she brings up a possible issue from what she just read technically it’s within the 45 days so it would still be active and then she brings up an issue with it and all of a sudden out of thin air it’s going to be changed as of right now. Just seems like odd timing to me. Mary said she is satisfied with that portion that’s one of the requests that you properly classify him. Jim stated they will spend time with their attorney at KAC and ask that question. Mary stated in the meantime if it is acceptable to everyone I gave this to Nelson and I will give the others one, but there is an additional issue in here that I would like to have discussed and addressed and if we want to do that in executive session. Nelson made a motion to go into executive session KSA 75-4319(b)(1) to discuss personnel matters of individual nonelected personnel to protect their privacy including 3 commissioners and Mary Pemberton for 10 minutes returning here at 10:05. Clifton seconded. All approved. Clifton made a motion to resume normal session with no action. Nelson seconded. All approved. Clifton rescinded that motion. Clifton made a motion to resume normal session with action. Nelson seconded. All approved. Clifton made a motion for the other two commissioners to allow me to call KAC and discuss some legal contract issues with their attorneys. Nelson seconded. All approved.
Susan Bancroft – CFO: With the organizational changes, I wanted to introduce Teri again and see who her main point of contact will be when she has concerns. I know we talked about this when we were going through the organizational change and then also she has a couple of EMT openings and wondering if she can fill them because that will reduce overtime. Jim made a motion for Clifton to be the contact person for EMS as he has medical background. Nelson seconded. All approved. Clifton made a motion to remove the hiring freeze. Nelson seconded. All approved. The EMS positions can now be filled. Teri stated that they received a Lucas device. It frees us up if we are doing CPR; it is continuous compressions. We did in-service yesterday and it’s in service. Clifton stated he was with a person who had a medical emergency and the EMS, Sheriff Martin and City Fire Department all showed up and was very professional and did an excellent job. Jim asked Teri going forward do you perceive getting enough employees on the upper end to start taking away some of the overtime or is that built into the system. Teri stated that’s Michael. Clifton stated that this is a revenue-producing department and it’s not overtime that is necessarily costing the taxpayer dollars. Nelson asked what percentage of ambulance calls are not paid. Teri said she didn’t know off the top of her head but could get the information. Michael asked are you using reasonable and customary. Clifton stated he was going to get with Teri and a couple other districts on how they are billing. I don’t like how we are doing our billing, but I have, with that, we are doing that. Michael stated you are doing it by default. Most people are saying my insurance company paid why are you billing me. Clifton stated he thinks insurance can be confusing. We are going to look at that and talk to other districts.
Shane Walker – COO: No Comment.
County Counselor Justin Meeks: Clifton made a motion to move his time to after Sheriff Martin. Nelson seconded. All approved.
Sheriff Martin: Mr. Meeks reached out to my attorney on Friday afternoon and had a conversation. So after meeting with my attorney I will submit a letter to be entered into the Clerk’s Office and I need it to be filed stamped and returned back to me if possible please.
Clifton asked if someone is represented by an attorney can we talk to that person. Justin stated no. Jim stated that would be Sheriff Martin. Justin stated he is represented by counsel yes. Clifton stated we can’t have a conversation with him them. Justin stated unless his attorney is present and waives his attorney-client. Jim stated so he shouldn’t be on the agenda again without his attorney present. Sheriff Martin stated this is a civil action. Justin stated I’m glad the sheriff stated it’s a civil action that makes our argument even stronger. When someone is represented by an attorney whether it’s civil or criminal. Clifton stated regardless of who it is. Justin stated if someone comes in here and represented by counsel the commission shouldn’t respond because there is potential litigation. Justin requested an executive session for employer-employee negotiations. Clifton made a motion for executive session KSA 75-4319(b)(3) to discuss matters relating to employer-employee negotiations whether or not in consultation with the representative(s) of the body or agency including 3 commissioner and Justin Meeks for 10 minutes returning here at 10:29am. Nelson seconded. All approved. Clifton made a motion to resume normal session with no action. Nelson seconded. All approved.
Public Comment: Clint Walker asked about the new contract plan. Is there is a succession for these people. Clifton stated there is. Clint stated that in the past when a person was given a raise the commission voted on it. How do we know if contract people get raises. Clifton stated elected officials can give their employees raises. Clint clarified that all the director positions that were created can they give themselves a raise. Clifton stated no. Clint asked when they do get a raise does the commission vote on it. Clifton stated yes. Kim LaPorte stated she is newer to the area. Prior to coming today I tried to use your website to inform myself a little bit and I would say that for someone new to the area. I felt there was a lot of things missing. When I clicked on my commissioner to send him a message to introduce myself and express concerns. The e-mail took me to his predecessor. I also couldn’t find any place where there is a monthly/yearly calendar for commission meetings, couldn’t find agenda information and decide if I wanted to come in. Ashley told her she could leave her name and e-mail address with the clerk’s office and we’ll put you on the agenda recipient list. Kim brought up Yale Rd. She was at a social event recently and there was a lot of talk with some information and misinformation and conflicting information. Nelson stated that most people he has talked to in that area don’t want Yale Rd torn up if it won’t be repaved. Kim stated her husband had taken notes from the meetings he attended in 2017 & 2018 with the same issues. Since I moved there in 2017 there is more and more traffic and more and more people that are full-time residents. Jim stated that many roads need reclaimed but that is very expensive, but we have miles and miles that sooner or later this commission is going to have to make a decision. Michael Hoyt stated that yesterday Pete Allen had heart surgery but did well. Ray Street was recognized at KU as decorated Vietnam War Veteran.
Commission Comment: Nelson stated he wanted to vent his frustration about all the state mandates. Clifton stated he got some thanks by a few people. Jim reminded everyone of the townhall meeting tomorrow evening at the Empress Center. Housing will be main topic. Jim made a motion to allow all 3 commissioners to attend if they choose. Clifton seconded. All approved. Clifton made a motion to allow 3 commissioners to attend Republic Party meeting on Thursday. Jim stated the meeting has been moved to February 1st. Jim seconded. All approved.
At 10:45am, Clifton made a motion to adjourn. Nelson seconded. All approved.
THE BOARD OF COMMISSIONERS
OF BOURBON COUNTY, KANSAS
Ashley Shelton, Bourbon County Clerk
_______________, Approved Date