The Seward County Board of Commissioners tabled a decision during its regular meeting June 11 regarding the county’s salary study because it received notice that the salary study committee had allegedly been in violation of the Open Meetings Act.
Deputy County Attorney Barb Armstead read a statement on behalf of the County Attorney’s office saying that all of the salary study committee meetings, which started in February and ended May 31, were in violation of the Open Meetings Act, and therefore the board could not take action based on the information gathered or discussed during those meetings.
Armstead said she and County Attorney Wendy Elston had been previously communicating with Board Chair John Culver via email.
“We have provided him with this legal opinion. Therefore, you are on notice that taking action in violation of the Open Meetings Act not only voids the action, but is a criminal violation and you may be subject to criminal penalties,” she said.
Criminal penalties would also extend to any member of the public body, meaning those who are not on the board but were a part of the committee, “who knowingly violated or conspired to violate or who attended or remained at the meeting knowing that the public body is in violation of any provision of the Open Meetings Act,” Armstead said.
Initially, Armstead said that only the May 31 meeting was in violation, and the committee could remedy the violation by redoing the meeting. She later corrected her statement saying that she was wrong and it was actually all the committee’s meetings that were in violation.
County Clerk Sherry Schweitzer said that because she was not on the board, she had not received information about the alleged violation.
“I want to know why the meetings that we held as a committee, why they needed to comply with the Open Meetings Act, but I’m asking you, can you tell me as a member of the committee, why?
Armstead added that because the salary study committee was not a subcommittee, but instead an advisory committee, it had to comply with the Open Meetings Act, which she said, it had not.
“A subcommittee is a subset of the board. Once you start adding other individuals it becomes an advisory comittee,” Armstead said, using case law examples.
Schweitzer said she had complied with the Open Meetings Act by posting the meeting agenda in three public places and had also sent a schedule of the meetings to Elston.
“I’m surprised. We had those meetings since February, almost every Tuesday, so why was this not brought up until now?” she said.
Schweitzer said Elston was present during the committee’s first meeting and asked why the committee had not been made aware of this violation until now.
“I’m giving our position. I don’t know the history. I know there have been some meetings we have not been aware of, but I can’t answer that,” Armstead said.
Schweitzer said that the previous year’s salary study committee had also consisted of board members, some department heads and the county attorney, and they had not received notice that they were in violation of the act.
According to Armstead, the penalty for violating the act, which is a Class 4 misdemeanor, is a fine up to $500 for the first offense, and any subsequent offense is a Class 3 misdemeanor, which means three month imprisonment, a $500 fine or a combination of both.
Commissioner Bob Vrbka asked whether a suit had been filed since, according to the county attorney, they had been outside the law since February.
Armstead said the county attorney would not file charges, but the case will be referred to the attorney general’s office, which will conduct an investigation.
Culver asked Armstead if a complaint had been filed, to which Armstead replied yes.
Later during a phone call, Armstead said her office had not received a formally filed complaint, but a member of the public had raised concern over the committee.
Seward County Treasurer Robert Dahms addressed the board and cited numerous case law examples, which he believed supported the board’s position.
“They (the county attorney) can file action or whatever, but I think somebody didn’t get their way and is trying to make somebody else pay the consequences,” Dahms said.
Commissioner Becky Paulsen made an agenda request for the board to seek outside legal counsel.
“It seems to me that we’re up against a wall and need to make a decision and need a little bit more information,” she said.
The board proceeded to hear the salary study committee’s recommendations, but tabled discussion for its June 18 meeting.
