Monday, April 7, 2008

Conflict of Interest, Oath of Office, and Comprehensive Plan

Jacinta Faber gave the following little speech to the Ellis County Commissioners as they were meeting in session on April 7, 2008:

Gentlemen of the County Commission,

I thank you for giving me as a citizen the opportunity to address you, as the governing body of Ellis County.

One of the distinctive features of American government has been the rule of law. We are not governed by the commands of a king nor by the whims of people seeking favors from their friends. Rather, we the people—through our representatives—make the law, and we the people accept the law as legitimate because the law we make is enforced uniformly, fairly, and without favoritism.

Although I have concerns about bringing the wind industry into residential areas of Ellis County, I come to you today to bring to your attention my concerns not about the wind industry, but about the governmental process.

Through you, we have accepted the words and thoughts of the Zoning Regulations of Ellis County, the Bylaws—Rules and Regulations of the Joint Planning Commission of Ellis County, the Ethical Principles of the Ellis County Joint Planning Commission and Staff, and the relevant state statutes. As you no doubt know, KSA 54-106 says that everyone appointed to an office shall take the following oath:

"I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ______. So help me God."

As you also no doubt know, the Office of the Attorney General of the State of Kansas has offered the legal opinion that taking the oath within a reasonable time after selection is a pre-requisite for holding the position. Although we would expect the commissioners of the Joint Planning Commission to uphold the constitutions and faithfully discharge their duties without having taken the oath, that the commissioners have never taken the oath is an indication of a disappointing lack of concern for the law of the land.

That lack of concern for the rule of law is also shown in the apparent unwillingness of the Joint Planning Commissioners to comply with the bylaws and the ethical principles that have been adopted. The “Bylaws of the Joint Planning Commission” say, and I quote,

Members of the Joint Planning Commission who shall legally have a conflict of interest or believe that they may have a substantial interest, as defined in K.S.A. 75-4301, in any matter that is on the Commission's agenda shall voluntarily excuse themselves, vacate their seat and refrain from discussion and voting on said item as a Commission member. Conflict of interest includes ownership of property or business in which the Commission is considering action, receipt of fees, salaries or gratuity from such business or businesses, or a family relationship to an applicant seeking Commission action. (“Bylaws—Rules and Regulations,” Article XI.)

And similarly, the “Ethical Principles of the Joint Planning Commission” say (and again, I quote)

To avoid conflict of interest and even the appearance of impropriety, Joint Planning Commission members who may receive some private benefit from a public planning decision must not participate in that decision. The private benefit may directly or indirectly create a material personal gain, or provide an advantage to an immediate relative. A member with a conflict of interest must make that interest public, abstain from voting on the matter, not participate in any deliberations on the matter, and step down from the Joint Planning Commission and not participate as a member of the public when such deliberations are to take place. (“Ethical Principles,” paragraph 6)

I am concerned about conflicts of interest and the appearance of impropriety because it has been publicly reported in the Hays Daily News and elsewhere that one member of the Joint Planning Commission has an immediate relative who would may benefit from decisions of the commission, and other members of the commission may themselves receive payment for having wind turbines sited on their property in publicly reported future stages of planned development. Yet these members of the commission have not excused themselves from deliberating and deciding.

The disregard for their own bylaws and ethical principles undercuts the legitimacy of the actions of the Joint Planning Commission.

Beyond the disregard for the oath of office and the appearance of conflicts of interest, another thing that seems to show disregard for the rule of law is the Joint Planning Commission’s lack of concern for a comprehensive plan for the county. Paragraph 1 of Article I of the Bylaws—the paragraph setting the very foundation of the responsibilities of the Joint Planning Commission—says, and I quote once more,

It shall be the responsibility of the Joint Planning Commission to cause the preparation, development and adoption of a Comprehensive Plan in accordance with Kansas statutes upon the authorization of the Governing Body. (“Bylaws—Rules and Regulations,” Article I, paragraph 1)

Yet the Joint Planning Commission has made no effort in its three years of existence to prepare or develop such a plan. Again, this sort of disregard for the law undercuts public confidence in the operation of government.

As the Governing Body of Ellis County, you oversee the operation of the Joint Planning Commission. I understand that zoning and the operation of the Joint Planning Commission are relatively new to the county and that beginnings can be hard. But if the Joint Planning Commission is really to serve the purposes set forth by the zoning regulations, the first of which is, “To promote the health, safety, comfort and general welfare of the citizens of Ellis County, Kansas” (“Ellis County Zoning Regulations,” Article 1, Section 1-102), then the County Commission must exercise its oversight function effectively. As a citizen of Ellis County, Kansas, I appeal to you to see that the Joint Planning Commission follows the law. I want to see the law respected in all ways, but right now we know that there are specific problems with taking the oath of office, with avoiding even the appearance of a conflict of interest, and with the legal requirement for a comprehensive plan.

Let us work together to preserve the rule of law.

Thank you.

No comments: