ROBERT PIERCE
• Leader & Times
Seward County Counsel Nathan Foreman recently offered his letter of resignation to Commission Chairman Scott Carr, and Tuesday morning, he met with commissioners and staff to talk about the transition to the next counsel.
“I’m committed to transitioning this role in a way that makes it easy for the county,” Foreman said. “At the same time, it makes it easy for me to transition out of that role.”
Foreman said he plans to work through October, and he plans to attend the commission’s two regular meetings on Oct. 6 and Oct. 20 before he leaves office.
Foreman said the county does have many pending legal matters he would like to finish before he finishes his time as county counsel. He would later meet with commissioners in executive session to discuss those matters.
In his time in office, Foreman has headed up the end portion of the county’s tax sales, and he said he simply needs to publish notice of the sale date in the newspaper to finish up with that task.
“I just have to work with the treasurer, along with the sheriff in setting the sale date and work through some of the mechanics of registering bidders,” he said. “The firm out of Wichita has a bidder registration process we’ve never done in the county before. I want to talk to them about that to see why they do it and see if it’s something we want to do. It would take a little bit of work for the treasurer’s office. I’ve got to talk about them.”
Foreman said notice of the sale has to be published three times, and the tax sale would have to happen 30 days after the first publication date.
“I’d say we’d be in the position to have that sale by the end of the year,” he said. “There’s also a confirmation process where you go to confirm the sale afterwards, distribute the proceeds, apportioning costs and fees throughout the parcels. That’s a bit of a complicated process, so it could trickle into next year as far as the actual distribution of it.”
Foreman said there is an incredible amount of legal work the county has in diverse areas of law such as employment law.
“We get a lot of employment questions,” he said. “There are questions about complicated tax matters as we’re seeing. There are run of the mill contract issues. There’s specialized government law we’re tasked to look at. Each year, the legislature adds more and more statutes to our statutory framework.”
With the added laws on Kansas lawbooks, Foreman said it gets harder and harder with each year for general practitioners to do the work of a county counsel.
“Some of the areas of law I feel uncomfortable with, I have directed you to specialize counsel,” he said. “The tax issues as far as litigation is one of them. Litigation is a fairly complicated area of law, not so much complicated, but it takes a lot of manpower. You’re up against a large firm that has many associates. I think it’s advantageous to the county to also have that type of representation in those specialized matters.”
Administrator April Warden said recent issues have come with budget law and tax law, as well as the State of Kansas’s Revenue Neutral Rate.
“I’ve reached out to several attorneys,” she said. “That was an area Nathan felt was a specialty, and we needed to reach out. It will be up to the commissioners to provide me the direction of how you want to move forward with his replacement.”
Warden said before a replacement can be hired, questions will need to be answered.
“Are you going to hire contract again?” she said. “Are you going to hire somebody in house again? Are you looking for a firm that has the diversity he was speaking of to be able to handle all of the diverse issues we have? That’s a commission decision.”
Commissioner Presephoni Fuller said with ongoing issues with the county, Foreman’s replacement will need to quickly address those problems and find answers.
Foreman said there are many attorneys in Kansas who specialize in specific areas, and Southwest Kansas has some lawyers who can deal with general contracts.
“Not everything is in Wichita,” he said. “There may be another attorney out there who would want to handle it locally, along with support in the specialized areas from other firms that specifically address things like taxation and budget.”
Seward County Clerk Stacia Long said legal counsel does have to review and sign purchase orders and payroll as well as attend commission meetings.
Warden then asked the commission how to handle finding new counsel.
“Is it the wish of the commission I start advertising for a general counsel?” she said. “Are you wanting under contract, or are you wanting it in house?”
Foreman said he feels an individual could probably dedicate themselves full time to handle the legal issues of the county.
“However, I also think a person, if they had more support as far as more leeway in getting specialists and having a firm for specialized issues, that load would be taken off,” he said.
Foreman, who also operates a private practice, said with less and less attorneys available in Southwest Kansas, finding local answers could become difficult.
“One minute I’m working on a child custody case, and the next minute, I’m doing research on wind energy,” he said. “If you could have something set up where you had somebody local who had the ability to tie in to other firms in specialized areas, that would be a framework you could work with.”
Warden asked Foreman if this means commissioners need to have a specialized firm available right away.
“That could be a way that could make this a little more manageable for a local attorney,” Foreman said. “There’s a number of ways people have structured representation over the years. That could be part of their proposal and negotiation.”
Warden later addressed recent numerous demands for open records, particularly those concerning the commission’s decision to raise the county’s mill levy 13 mills above the Revenue Neutral Rate, the rate expressed in mills by which the county would collect the same amount of revenue it would the previous fiscal year.
“It’s typical to ask somebody to fill out a Kansas Open Records request so we have the request on file in the clerk’s office and the information that has been provided,” she said. “I did not realize I was opening up a can of worms in asking for that.”
Many of the open records requests have been done by staff at the Leader & Times, and she said publishing limitations could be put on legal notices in the paper such as not resizing documents or publishing notices submitted after deadline.
With a number of the county’s departments utilizing the newspaper, Warden said this could hamper getting notices published.
“I can’t tell you how many times there’s been requests for late publications or that it delayed the newspaper,” she said.
Warden said legals would have to be ready for print when they are submitted, and late fees could be charged as well.
“I did not mean open up a can of worms,” she said. “If we want to allow the media to request information without a Kansas Open Records request, so be it. I responded I would bring it before the commission.”
With no voting authority of her own, Warden said commissioners could determine if they would like L&T staff to complete open records requests and endure service issues or if such requests should be handled how they have been up to this point.
“He does text messages,” she said. “He does e-mail, and he’s made phone calls to offices to just get information. That is not my decision. It’s just the completion of a form for an open records request. That way, it stays on file in the clerk’s office with all of the documentation we’ve been providing. I feel it needs to be a commission decision.”
Neither Foreman nor Long said the Kansas Open Records Act requires requests to be made for open records.
“I send PDFs all the time without requiring that, plus most of the information is available online,” Long said. “An open records request form is not required, and they can call it a KORA request. It is not required if they do it in writing.”
Commission Vice Chairman Steve Helm said even without filling out the form, an informal request still needs to be made and given to Long.
“That would be any department,” Helm said. “At least, we maintain some kind of record.”
Foreman did say the county’s open records policy needs to be looked at to make sure it is consistant and everyone is abiding by it.
“One of the things about government is everybody gets treated the same, so you’ve got to make sure we’re doing it the same for everybody,” he said.
Attention then was turned to a pending agreement for legal services with the Wichita-based law firm Foulston Siefkin, who reached out to Warden regarding the legal matters with RNR, statutes, tax laws and no fund warrants.
“They do have expertise, and they’re willing to take it on if that’s an area the commission chooses for me to follow to get these answers,” she said.
Helm said the county needs to rely on paid legal advice, not sideline experts.
“That information needs to be shared with all the commissioners,” he said. “Then we can make a decision.”
Warden said charges for dealing with issues would not be known until Foulston Siefkin officials were sent the issues in question.
“They sent an agreement for legal services, scope of representation, financial terms,” she said. “They’re not requiring a retainer. Depending on what attorneys they have work on different things, those attorneys charge different amounts.”
The county budget was scheduled to be certified Wednesday, but Foreman said leaders will continue to receive question even after that deadline.
Matters with the RNR include potential violation of the law by commissioners in terms of exceeding the rate by more than it is allowed. Foreman said he was aware of no other reported such cases in Kansas.
“There’s some pending litigation,” he said. “From my quick review of the statute, there may be a couple of attorney general’s opinions, but it’s something that is relatively new. At the very least, my recommendation would be to get somebody who’s there if you need it. If nothing happens from that, you don’t need to use their services. They’re going to be by the hour, but at least, you get somebody ready to go.”
The commission would later take a 30-minute recess to allow Foreman to review the agreement with Foulston Siefkin, and he said the agreement appeared to be a standard agreement.
With the county currently in an apparent budget crunch, Fuller questioned the hiring of such services. Helm and Long said the purpose is to get a professional legal opinion paid for by the county.
“They could still challenge it,” Long said. “It would go into court, but we’ll be in good standing.”
Warden said Long still has until November to certify the county’s valuation and set the mill levy, but Foulston Siefkin would still need a decision on the agreement as soon as possible.
“They would need us to make a decision so they do have proper time to work on it,” she said.
After reviewing the agreement, Foreman had a few notes, the first being the scope of representation outlined in the agreement.
“That’s what you’d be engaging the attorneys for,” he said. “You’ll note it’s in connection with whether client’s public notice mailer regarding the Revenue Neutral Rate and budget complied with mandatory Kansas law. What I would say about the scope of representation is I could see it expanding into other issues in the next 30 or so days.”
For this reason, Foreman said he would recommend giving Warden the authority to expand the scope of representation.
“It also provides that the client may limit or expand the scope of representation,” he said. “She needs some authority to do that.”
The agreement outlined examples of representation beyond the scope, and Foreman said though no retainer is currently required, one could be asked for at a later time.
“Their payment is due within 30 days of receipt, and they have a 1.5 monthly cumulative late fee,” he said. “Their fees on an hourly basis. They charge for attorneys and paralegals. They also charge for secretarial work at $75 an hour.”
Foreman said if Foulston Siefkin officials feel they have a conflict, they can withdraw back to the main agreement with fees and costs still in place.
“This is not unusual, and you’ll get monthly statements for the work done,” he said. “They can go up on their fees annually.”
Commissioners voted unanimously to give Carr the authority to sign the agreement and give Warden the authority to expand the scope of representation.
