After a discussion that lasted nearly an hour and a half, Butler County Commissioners on Tuesday approved a resolution to transfer to the administration department all accounts payable and payroll functions and duties except those required by statute to be performed by any other county office. The resolution also sets forth general guidelines for the execution of these functions and duties.
The discussion about duties and functions of the clerk's office began during last Tuesday's commission meeting when newly elected clerk Don Engels came before the board to discuss the changes he proposed for the clerk's office.
Several of the commissioners took exception to Engels' proposal to have county employees involved in accounts payable and payroll functions report to him. These employees currently operate under the administration department and report to County Administrator Will Johnson. Portions of the salaries of the three employees in question come from the clerk's budget, so Engels said those employees should report to him.
"There has been discussion that the clerk would like to move functions back to the clerk's office," said Johnson. "The Kansas Supreme Court has made it very clear the county commission can make that determination."
Johnson cited several other Kansas counties, including Seward, Franklin and McPherson, that have resolutions similar to the one the Butler County Commission eventually approved on Tuesday. Ellis County and Cowley County also have a similar operating structure but does not have a resolution formally outlining that structure.
Johnson said both County Counselor Norman Manley and Butler County Attorney Darrin Devinney had been consulted and agreed the decision was up to the commissioners.
Commissioner Peggy Palmer clarified the proposed resolution was about accounts payable and payroll.
"It does appear to me the county commission does have the discretion in payroll and probably also accounts payable," said Commissioner Ed Myers.
Myers also asked for clarification and amended language in a couple of places in the resolution to make it more clear.
"There are a few lines or a phrase left out," he said. "As it stands it doesn't really complete a thought. I'm suggesting a possible modification to that point."
The amended resolution included language that clarified the clerk and treasurer will be able to perform their statutorily required duties. It also specifies staff will prepare and provide information should an audit occur.
"In general I am in favor of a resolution," added Commissioner Jeff Masterson. "I think oversight needs to stay with this board."
He also said he was not in favor of accounts payable and payroll oversight being transferred to the clerk.
"We are probably making a mountain out of a mole hill," said Masterson. "But I am in favor of making a resolution if that's what's required."
"I have a different swing on this," replied Palmer. "The law was put into place to have checks and balances. We are usurping that duty, in my opinion, by taking those. I'm not sure what the big deal is here. Accountability is what we are elected to provide."
Palmer noted she didn't see the need to have this resolution in place.
"I am totally opposed to this change," she said. "We have to be looking at what's been happening. The county administrator took over those duties without direction from the board."
"That is not correct," replied Masterson. "He serves solely at the discretion of this board."
"By allowing the clerk to do the job that is in law, it gives you an additional oversight," said Palmer. "It gives you additional checks and balances. That is why it was put into place by law. It does no harm."
Engels noted that two attorney general opinions, from 1982 and 1999, were being used as a basis for opinion on what to do.
"This is a matter of law," said Commissioner Dan Woydziak. "The county commission does have the authority and still has oversight. We're not giving that up that oversight by putting them under administration. I think the concern is we have a system that is working and working well."
He also noted the commissioners receive more information from present staff members than they have in the past.
"We have a system in place that is working," said Woydziak. "All this resolution does is clear up the fact that it is now in written policy that this is the way we will do business. Requirements are still in place for other folks. They still have to provide that checks and balance. Quite frankly, some of the comments made last week cause me concern about management style."
Masterson pointed out the administration department should be used if it's there.
"If you're going to have an administrator, it seems to me you make use of that," he said.
Palmer expressed concern the resolution would take duties away from another elected official.
"We're not taking anything away," said Commissioner Mike Wheeler. "This is the way it's done. It's working."
Wodyziak pointed out the Kansas Supreme Court found the county commission has the discretion to place accounts payable and payroll under the administration department.
"I'd like to know, where is your law degree that states you have more knowledge than they do," Woydziak said to Engels.
"I don't have a law degree," said Engels. "When attorneys read these things they come up with different opinions."
"And the supreme court is wrong in their ruling?" asked Woydziak. "Every time a court decides anything there's an attorney there who argues the other side."
Woydziak also felt once the supreme court has ruled on an issue, the ruling is to be followed.
Devinney joined the discussion and pointed out the basic differences between civil and common law. Great Britain and the United States, with the exception of Louisiana, operate under common law. Louisiana, like the country of France, operates under civil law.
"Common law has two basic premises," said Devinney. "One is a legislative act, and the other is when the supreme court issues an opinion, when they set a precedent, that is as much law as the legislative acts which they have reviewed."
In an area governed by civil law, all laws have to be legislatively enacted.
"Mr. Engels is right," said Devinney. "Attorneys can give all sorts of opinions."
However, Devinney noted the court's opinion supersedes that of any attorney.
"If the supreme court does something," said Devinney, "That's what you do. Precedent is precedent and we have to follow it as it is. What I can say is the supreme court, in their evaluation and opinion, said the county commission can choose."
Devinney said as a lawyer he could argue any side of the issue, but supreme court precedent makes it clear the commission can make the final decision about this issue.
"You have broad discretion," said Devinney. "Every elected official has some discretion."
"It appears this has been going on for a number of years," Palmer said of having accounts payable and payroll functions under the administration department. "The past county clerk gave part of his duties to the administration. Is that something that is legal?"
"There's nothing illegal about it," replied Devinney. "This is the first time I've been aware of this issue coming to light."
Devinney, who has worked for Butler County for 13 years, said the working relationship between administration and the clerk has been informal.
"Put yourself in place of the newly elected clerk," said Palmer. "He reads the laws, he wants to do what's right and what's statutorily his job."
"Statutorily, that's not the entirety of the law," replied Devinney. "The supreme court is as much law as statutes. That really is the difference in having a lawyer look at it and a non-lawyer look at it."
Devinney said he could understand how Engels came to the conclusion the payroll and accounts payable duties were his from looking at the statutes.
"The supreme court case we have supplements and clarifies the statutes that we have," continued Devinney. "I understand how he would see that. However, that's not the only clarification you have."
Palmer mentioned an attorney general's opinion she had read.
"If changes are made, there needs to be some conditions to consolidate," she said. "There's nothing to base any inaccuracies or anything wrong. There isn't any reason except it's been done before that way."
"An attorney general's opinion is merely an opinion," replied Devinney. "It is not binding. It is not precedent. It is not binding such as a supreme court opinion."
"I think you also have to look at the intent of the original law and job descriptions and why they were put in place," continued Palmer.
"The supreme court opinion that we're looking at doesn't review what makes a clerk a clerk," said Devinney. "It merely looks at that one individual issue. All of that falls under home rule. What it boils down to is this board has a choice."
Palmer also expressed concern about the timing of the resolution and its preparation.
"Where did you get that authority?" Palmer asked Johnson of presenting the resolution.
"I took initiative," replied Johnson, "like I do with a lot of issues."
"I told him to be prepared," said Woydziak. "All we were doing was being prepared."
"In my view, not passing the resolution would represent the change," said Masterson. "Do we or do we not need administration? In 1997 it was decided we needed administration and made that department."
He added if the administration wasn't going to be utilized, maybe there should be a conversation about its necessity.
"I think we have to decide that," continued Masterson. "I'm in favor of the resolution as amended by Commissioner Myers at this point."
At this point in the discussion, Butler County resident John Provorse addressed the commissioners.
"It reminded me of Congress," he said of the discussion. "These guys that sit up there and argue back and forth. The thing about this whole mess, you're going to do the same job. How are you going to allocate your resources? I agree with Commissioner Palmer. It's nice to have checks and balances. The more people and the more eyes that look at things the better off."
Engels then addressed the commission again.
"I was hired by the citizens of Butler County to perform all statutorily required functions," he said. "I'm the only degreed accountant in the building. As I stated last week I believe the Kansas statutes assigned accounts payable to the clerk."
"As I listen to what's been said this morning," said Myers, "the supreme court opinion in the Franklin County case seems to primarily be addressing accounts payable. And the other thing is we as a commission ultimately have oversight, irrespective of whether the clerk handles that or the administrator handles that. We're free to do either."
Myers suggested maybe the commission could take more time to review the issues and not take final action on the resolution during the meeting. Palmer agreed.
"I'm a little less comfortable with accounts payable than I am with payroll," he continued. "We do want to have all offices of the county working on a friendly, constructive basis with each other. I don't feel the county would be served worse either way. At the same time, I don't dispute the record of efficiency."
"I want to be careful with accounts payable too," said Masterson. "I don't think Butler County would be best served if all of our departments had to report to the clerk."
"I think we need to look at this," said Palmer. "This is an important issue. We need to learn the process. I think more clarity and more information would be very helpful."
"I don't need any more information," replied Wheeler. "I don't know what else is going to come to light."
"The process will continue as it has in the past," said Masterson.
"I think this has all been overblown," said Palmer. "It's a lot to do about nothing for him to want to do the accounts payable, it doesn't hurt to have more people involved. I don't understand the big issue here."
"When the former clerk was here [prior to Ron Roberts] bills were not being paid," said Woydziak. "That is why that function was transferred back to administration. It has worked very well. By transferring this, it doesn't relieve anybody of statutory duties."
"First off, I know for a fact accounts payable and payroll was handled by the clerk's office as late as 2004," said Engels. "I asked Ron [Roberts] if he had any agreements with administration. He said no."
Engels also maintained having the duties in question under his direction would provide independent oversight.
"What's the difference between having the clerk and administration?" asked Engels. "The main difference is independence. I have independence. I can bring you guys information you don't want to hear. I have independence and I don't think the administrator does."
Woydziak pointed out that even if his office wasn't responsible for preparing accounts payable and payroll, Engels would still have the ability to bring bad news to the board.
"If I see it," said Engels.
"By statute, he still has to review and reconcile with the treasurer's office," said Woydziak.
"To simplify this, we are talking about functions that are still going to be performed the same," said Johnson. "It's who is overseeing those functions. The resolution would transfer those salaries to administration because that seems to be the contention point."
"I think we all need to sit down and go through this," said Palmer.
"That's what we've been doing for an hour and five minutes," said Masterson.
"I'm comfortable with the resolution as amended," said Woydziak. "The only way I will be willing to wait is if things stay the same."
"I would just like to give another good reason for us to wait," said Palmer. "This just quickly started. Our constituents will have a week to get back with us. Waiting a week gives citizens more input on this."
"The reason for the urgency is we were brought up here last week with no prior knowledge that proposed changes were going to take place immediately," replied Woydziak. "That indicates to me we need to make a response immediately. We did not create that sence of urgency. He created that sense of urgency. This board was caught off guard. This is a response to somebody who wants to immediately change the way we've been operating for 10 years."
Woydziak pointed out the three administrative employees Engels said would begin reporting to him have been doing their jobs well.
"They can continue on," he said, "without taking away the checks and balances the clerk nad treasurer perform. All this does in my opinion is put in writing the functions that are happening now. They do a good job, our elected officials have done a good job. I see no reason not to pass this resolution today."
"The urgency I brought to your attention last week was the budget did not match the organizational structure," Engels said, referring to the portion of the administrative employees' salaries that come from the clerk's budget. "They did not match. I brought it to your attention."
At this point in the discussion, Woydziak made a motion to pass the resolution with the amendments suggested by Myers.
The motion passed with Woydziak, Wheeler, Masterson and Myers in favor and Palmer opposed.
The passing of the resolution formally stipulates accounts payable and payroll will continue to operate as they have been, and the administrative employees will not report to Engels.
In other business, the commissioners:
• approved a recommendation to the City of El Dorado the application of MV Purchasing to rezone property near SW Purity Springs and SW 20th would be in conformance to the Butler County Comprehensive Plan. Craig Duncan, who lives near there, expressed concern about the amount of truck traffic in the area and asked the commissioners to do what they could to reroute or slow the trucks down. The commissioners said they would see what can be done about the traffic issues.
• tabled a request to award Stutler Technology as 2013-2014 microwave supplier and complete phases one and two of the microwave link refresh and data expansion in the amount of $195,491.75. The commissioners expressed concern about the cost, and would like to have a formal agreement in place for the use of Butler Community College's tower before proceeding with the project.
• approved the 2012-2013 MRC seasonal leadership travel request and travel scholarship information and approved travel for the Public Health Emergency/MRC Coordinator. The trip will come at no cost to the county.
• held a work session to discuss the quarterly investment of idle funds report. During 2012, $50,909.54 in interest was earned.
• held a work session to discuss the county's membership in South Central Kansas Economic Development District (SCKEDD) and authorized membership dues to be paid.
• recessed to executive session to discuss matters related to non-elected personnel.
• officially adopted a resolution establishing the new county commission districts that were approved last month.
• granted Public Works Director Darryl Lutz the authority to negotiate costs up to $5,000 with engineers to redesign pier walls on a bridge project on NW 50th that ran into unexpected problems.
• received County Clerk Don Engels who said he doesn't want to use an electronic signature. The commission chair and treasurer use electronic signatures, but Engels said he would prefer to sign everything by hand.