November 16, 2010
Opinion No. 2010-06
Francis E. Meisenheimer
Kingman County Counselor
Martindell Swearer Shaffer Ridenour LLP
120 East A Avenue
PO Box 415
Kingman, KS 67068-0415
Dear Mr. Meisenheimer:
This opinion is in response to your letter of November 5, 2010
in which you request an opinion from the Kansas Governmental Ethics
Commission concerning a possible conflict of interest by the
members of the Board of County Commissioners of Kingman County,
Kansas, pursuant to K.S.A. 75-4304 and/or K.S.A. 75-4305. We note
at the outset that the Commission's jurisdiction concerning your
question is limited to K.S.A. 75-4301 et. seq , and
whether some other statutory system, common law theory or agency
rule or regulation applies to your inquiry is not covered by this
opinion.
FACTUAL STATEMENT:
We understand that you have requested this opinion in your
capacity as Kingman County Counselor. You have advised the
Commission that you have three County Commissioners with a possible
conflict of interest in a proposed Special Use Permit for a British
Petroleum (BP) Wind Farm Project located in part in Kingman County.
The request for a Special Use Permit will be heard by the Kingman
County Zoning Board which will make recommendations to the County
Commission for approval or denial of the Special Use Permit.
You present possible conflict of interest issues for each
Commissioner as follows:
1. One Commissioner owns real estate in Kingman County which is
leased to BP for wind farm use. This land is in the area expected
to be developed for the current project. The Commissioner will
potentially receive lease payments for equipment placement. He has
previously received lease payments.
2. The second Commissioner and/or his immediate family owns real
estate in Kingman
County which is leased to BP for wind farm use. He has
previously received lease payments. His real estate is not
anticipated to be in the proposed project area.
3. The third Commissioner is employed by a title company that
may be requested to perform title work for BP for compensation.
QUESTIONS:
l. Under K.S.A. 75-4304, does the approval or disapproval of a
Special Use Permit for development of a British Petroleum Wind Farm
Project in Kingman County present a conflict of interest for any of
the three Kingman County Commissioners?
2. Are the provisions of K.S.A. 75-4305 applicable to the three
Kingman County Commissioners?
OPINION:
K.S.A. 75-4304 (a) states "No local governmental officer or
employee shall, in the capacity of such an officer or employee,
make or participate in the making of a contract with any person or business by which the officer or employee is
employed or in whose business the officer or employee has a
substantial interest." (Emphasis added)
Because the approval of the Special Use Permit is legislative in
nature and does not involve the "making of a contract", K.S.A.
75-4304 does not prohibit any of the three Commissioners from
voting on the permit. The Commission has consistently held that
K.S.A. 75-4304 does not generally cover legislative or
administrative decisions. (See Commission Opinions 2008-11,
2003-24, 1999-51 and 1999-05.)
K.S.A. 75-4305 (a) would apply and requires disclosure by a
local government official before participating in actions
other than contracts which may affect his or her
private business interests. That statute states:
"Any local governmental officer or employee who has not filed a
disclosure of substantial interests shall, before acting upon any
matter which will affect any business in which the officer or
employee has a substantial interest, file a written report of the
nature of the interest with the county election officer of the
county in which is located all or the largest geographical part of
the officer's or employee's governmental subdivision."
Once the Kingman County Commissioners have filed the appropriate
Statements of Substantial Interests, they will have complied with
the disclosure requirements of K.S.A. 75-4305(a) and may
participate in discussions and vote on the approval or disapproval
of the British Petroleum's application for a Special Use
Permit.
Sincerely,
Sabrina K. Standifer, Chairwoman
By Direction of the Commission
SKS/jam
