Call it “cronyism,” the “old boy network” or just “good ol’ boy politics” but the practice of appointing friends or associates to positions of authority has been a problem, not just in Crawford County, but across Kansas.
Not that the people appointed are not necessarily qualified — indeed in the two recent cases in Crawford County they were — but others who may have been as, or more, qualified may not have been considered because of the “old boy network.”
In tiny Arma, Kansas, recently-sworn-in Arma City Council Member Mary Lou Peace ran alongside incumbent council members Richard Kerley and Ray Vail in the 2017 election for two open council seats. Kerley and Peace won the two seats, but at the first meeting following the election, Vail resigned his seat and was re-appointed to a vacant seat with two years still left on its term — a seat which had been held open for five weeks.
Peace said she is hoping to change some of the “good ol’ boy” practices in the city and spoke against Vail’s reappointment at that meeting.
“As I stated at council, I feel that the citizens of Arma elected me not because I’m well known, but because they are ready for change,” she said in a recent interview. “And they’re hoping I will speak out against some of this good ol’ boy stuff.”
Peace said she has nothing personal against Vail, and that if the election numbers had been closer, it would be a different story. Peace received 46.2 percent of the vote, and Kerley received 30.4 percent, securing the two seats for them. Vail received 23.4 percent of the vote, which would have ended his time on the council in January when his current term expired.
Even though Peace did not agree with Vail’s reappointment, it was perfectly legal. Arma is a city of the third class with a mayor-council form of government. Under state statute KSA 15-201, mayors in cities such as Arma have the power to appoint whomever they would like to a vacant seat, with the consent of the council.
That was the contention of Arma Mayor Rock Anderson. He said Vail was his nomination for appointment because the election numbers did not seem staggering to him, and that Vail was best for the job. He also pointed out that the action was taken in line with state statute.
“As a ‘mayor-council’ city of the third class, we are always in compliance with state statute, which clearly states how appointments are handled. The mayor makes appointments and the council votes it up or votes it down,” he said. “Not everyone will always agree with your appointments and they can voice their opinion, and that is fine.”
The League of Kansas Municipalities tends to agree with Anderson. General Counsel for LKM Amanda Stanley said the practice of reappointmenting immediately-resigned members is not statutorily prohibited, and it is up to an individual governing body’s discretion as to whom they feel is the best person to fill a vacancy.
The Kansas Association of School Boards also agreed, following the resignation and re-appointment of Frontenac School Board Member Mike Bitner. After his re-appointment to the council, Bitner was also renamed board president.
“The law allows a board to fill a vacancy, and if it can fill that position with a person with experience all ready, that’s a plus,” KASB Executive Director of Legal Counsel Donna Whiteman said. “We recommend looking for the person with the most experience — board and council experience can be complicated and hard to find — so the law allows the board to fill vacancies with who they see fit.”
Even so, there could be legal issues — not with the re-appointment itself, but how that decision is reached.
Anderson said for appointments in Arma, he simply chooses his top three interested candidates and puts the names before the council for a vote.
“Ultimately I have multiple names in mind. I throw out the first and if the council votes it down, I go to the next and so on,” he said. “I think you can do it either way, a mayor could talk to individuals one on one, but can’t meet and discuss appointments as there is a law against that. I think what many people do is call individual members and run names by them.”
While Anderson said Arma doesn’t operate this way, the second half of his statement highlights a large problem surrounding cronyism — Kansas Open Meetings Act violations.
The Kansas Legislature passed KSA 75-4318(f) in 2009, prohibiting discussion of governing body business through a serial meeting. Serial meetings include phone trees, email exchanges and even in-person discussions. Even if the contact is one-on-one, if the same topic is discussed one-on-one with multiple members of the governing body, and with the intention of reaching a decision, it is prohibited.
Therefore, if governing body members encourage a member to resign — so that they may be appointed to a seat with an unexpired term — it may be a violation of KOMA.
Even if evidence suggests KOMA violations in this manner, it can be hard to prove.
Crawford County Attorney Michael Gayoso, Jr., said KOMA violation cases don’t require specific intent, but the party bringing the charges — whether the county attorney or a citizen — carries the burden of proof. They must prove the majority of a board or council met with the intention of discussing governing body business.
“There is a difference between suspicion and actual proof,” Gayoso said. “And getting actual proof can be difficult because people are often not privy to those meetings.
As well as being difficult to prove, KOMA violations have no criminal penalty. Violations can sometimes end in a fine, but more often than not result in a slap on the wrist.
“The court can issue a fine, but I have not seen that often,” Gayoso said. “Most of the time what you see is an accidental violation, so the body agrees to go through KOMA training.”
With no real penalty — unless a party can prove the meeting was intentionally concealed and used to make substantive decisions, such as tax changes — there is little way for prosecutors to force governing bodies to adhere to KOMA, and no real incentive for citizens to call out the “good ol’ boy” system.
— Chance Hoener is a staff writer for the Morning Sun. He can be emailed at firstname.lastname@example.org or follow him on Twitter @ReporterChance.