ROBERT PIERCE

   • Leader & Times

Many local constituents have called to stop funding Seward County Assistant Administrator Brock Theiner’s salary out of the county’s landfill fund.

Some, including Liberal residents Rick Madden and former county commissioner Jim Rice, have taken to the mic at commission meetings as part of the Citizens  Comments portion of the meetings to address their frustrations with the issue.

“You’ve turned a blind eye to it instead of trying to find a workable solution,” Madden said at the commission’s most recent meeting July 20.

Saying an answer has yet to be found as to the legality of the issue, Madden said the commission’s inability to act on the matter puts any potential fines in the taxpayers’s hands, not the commission’s.

At the same meeting, Rice said research showed numerous state laws and opinions concerning the use of landfill funds for purposes other than landfills.

“KSA 65-34-10, ‘Restricted use of funds, monies collected from solid waste fees must be placed in a special trust fund,’” he said. “By law, these funds cannot be diverted to other municipal purposes and must be used exclusively for costs connected to waste disposal facility or program.”

Rice said he found other attorney general opinions, one of which addressed a question in Reno County regarding the use of solid waste landfill fees to fund a joint building for that county’s Road and Bridge and landfill departments.

“The attorney general concluded the county is prohibited from using restricted solid waste fees collected under KSA 65-34-10 to build a facility for both landfill and Road and Bridge equipment repair and maintenance,” he said.

Rice also talked about an AG opinion from 2007 addressing the expenditure of fees collected under the state statute.

“The opinion clarifies local authorities must strictly limit the use of these collected fees, specifically revenues collected for waste disposal and solid waste purposes may only be expended for purposes that directly relate to the statutory purposes specified in KSA 65-34-10 and not for purposes that are merely incidental using restricted landfill funds to cover salaries or operating expenses of unrelated departments such as general county administration or maintenance conflicts with state budget authority,” he said.

Rice said the same opinion sets restricted state precedence in indirect services, clarifying that even seemingly related infrastructure like maintaining a county road leading to the landfill cannot be legally funded by landfill fees.

“Fees collected must directly relate to specific purposes outlined in the Solid Waste Statute 79-29-34 funds appropriated by the budget balances duties of the clerk and officer’s distribution of tax proceeds,” he said. “The budget as approved and filed with the county clerk for each year shall constitute and shall hereafter be declared to be an appropriation for each fund, and the appropriation thus made shall not be used for any other purposes. In other words, once the local government’s budget is officially approved and filed, it serves as a strict legal appropriation for each fund.”

Rice said this means money allocated to one specific fund cannot be divered or used for any purpose transfers of funds under KSA 79-29-34.

“The general rule within the budget law is there shall be no transfer between funds and the absence of lawful authority,” he said. “These are only a few of the reasons and concerns about the current expenditures of the Seward County Landfill funds.”

Commissioners would later vote 3-1, with Commissioner John Mettlen absent and Vice Chairman Todd Stanton against, to return Theiner’s salary to the county’s general fund. That decision, however, came after County Counsel Forrest Rhodes offered his opinion on the matter.

Rhodes said there is statutory structure governing landfill funding and how it can be used, but there is not a great deal of case law interpreting that statute.

“The laws are made by the legislature,” he said. “It’s what’s written in the statutes themselves, and they’re interpreted by the court systems. Attorneys, including the Attorney General’s office, can offer opinions on what they think the law means.”

These opinions, though, are not binding, according to Rhodes.

“They don’t carry the same force of law a court decision or the statute does on its face,” he said. “They can provide a valuable source of insight, and a court may choose on reviewing an issue to follow what the AG said in an opinion because the court believes the analysis. The court essentially views the analysis the same way and adopts that analysis, but the AG opinion otherwise is simply an opinion of an attorney on a particular issue. There are quite a few AG opinions on these issues.”

Rhodes said the opinions are helpful in interpreting issues, but they are not the law.

“What we have is the Kansas statutes,” he said. “Monies that are raised by the landfill essentially have to be limited to used for issues that are directly related to the landfill.”

Rhodes said the question basically boils down to whether landfill funds could be used to pay for issues directly benefitting the landfill.

“The AG determined no, you couldn’t because while it did benefit the landfill, it also directly benefited the property owners and businesses that also used that road,” he said. “So in the attorney general’s opinion, that didn’t meet the direct relationship test.”

Rhodes also referred to another AG opinion dealing with a county wanting to build a maintenance facility that would service the county’s equipment.

“It would service not only equipment of the Road and Bridge department, which candidly was the majority of the equipment, but it would also service equipment that was used by the landfill,” he said. “So the question was can we use landfill monies for the building of this facility? The county would reimburse the landfill fund for its proportionate share of the use of the building, recognizing Road and Bridge versus landfill, and the AG opined that no, you couldn’t do that either because the landfill funds could only be used for issues that are directly related to the landfill.”

Rhodes said a general premise exists that landfill funds can be charged for support the county provides to the department.

“There are functions the treasurer’s office performs, the clerk’s office performs that directly benefit the landfill because the landfill doesn’t have the staff to do all that administrative support,” he said. “Human Resources provide support for the landfill as well as the rest of the county.”

Under Kansas statutes, Rhodes said it is fair and appropriate for a landfill to pay its fair share of what these amounts are.

“Now, you’d have to be comfortable that the amount that’s being charged to the landfill is a fair representation of the cost to the county of providing those support functions to the landfill, but the idea that money never goes out of the landfill to the county would be wrong,” he said “Money can and does go out of the landfill to the county.”

Rhodes explained the practice Seward County has had in place for years is doing an end-of-the-year flat transfer of an amount.

“It’s been $270,000 historically to the general fund to offset the administrative support the county through the general fund provides to the landfill,” he said. “That scenario, I think, makes this situation we have right now, so the premise is you’ve got one employee who is working in the capacity of assistant county administrator by job title, whose compensation right now is being funded from the landfill.”

Theiner is a former supervisor for the Seward County Landfill, and as such, Rhodes said there is no question some of his job function directly relates to the landfill, while still others do not.

“We have a job that has split duties,” Rhodes said. “How do we handle that? You could look at some of these attorney general opinions and say, ‘Wait a minute. The landfill can’t do that because of the functions that are not related to the landfill.’”

The problem with this, Rhodes said, is the landfill is getting the benefit of all of those other administrative support functions that it is not paying for until the end of the year.

“That’s what the county has done historically,” he said. “There’s been a transfer at the end of the year from the landfill fund to the general fund. That transfer is much greater than the amount of money the landfill fund is paying for one employee’s compensation on a month to month basis. If you think of it like a balance sheet, the landfill fund is still coming out ahead month to month because what they’re paying is less than the fair share of their expenses, which are being trued up at the end of the year.”

Rhodes said what the county is doing at this time with respect to having compensation for one employee with mixed duties come out of the landfill fund is clear. What is not clear, though, is  whether that is unlawful under statute.

“You can argue as to what that directly means, but you can also point to the fact at the end of the day, the landfill fund is still paying less than what it would be paying otherwise because of all the other administrative support functions the landfill is not paying for until the end of the year,” he said.

With uncertainty and the issue of Theiner’s pay coming from landfill becoming an optical point that resurfaces from week to week and month to month, Rhodes said keeping the practice in place does not necessarily make practical sense to him.

“I’m not saying we can’t, and I’m not saying it’s unlawful to do that,” Rhodes said. “We’re going to true it up at the end of the year, but I don’t know that there’s a practical benefit to the county to continuing to do it in a way that is just going to draw scrutiny when we could move that employee’s compensation to the general fund now and still engage in the same. True up at the end of the year to account for portion of that employee’s compensation that truly is directed to the landfill.”

Going forward, Rhodes said the landfill should and will be required to pay for all the administrative support functions the county provides to the landfill.

“At first glance, some might say, ‘Wait a minute. That’s going to require an amendment to our budget because we’re moving a line from the landfill fund to the general fund,’” he said. “No it doesn’t. The general fund has the funds to absorb the compensation for that employee for the rest of the year. We’ve consulted the county’s auditor on this point. As long as we don’t surpass the approved funding in the general fund, and we won’t, then we don’t have to go back and go through an amendment process.”

Commissioner Clay Louderback made the motion to move Theiner’s pay to the general fund as assistant county administrator and take it away from the landfill  as it had been done in the past and to reallocate his salary to departments based on the time he spends with those departments.

Commissioner Jairo Vazquez seconded the motion, and the commission voted 3-1, with Stanton voting no and Mettlen absent, to approve the motion.