OSWEGO — Kansas Attorney General Derek Schmidt’s office found that two county commissioners violated the Kansas Open Meetings Act this year by calling each other without giving notice of what essentially was a public meeting and ordered the commission to take a one-hour refresher course on the law intended to make government actions open.
Schmidt’s office received a complaint alleging violations of KOMA earlier this month based on three phone calls between Labette County Commissioners Brian Kinzie and Cole Proehl in January and April. One of the calls was an eight-minute discussion between Kinzie and Proehl on April 27, days before Proehl introduced a resolution including negotiating points for a German utility that’s looking at developing a wind farm in the western half of Labette County.
Kinzie and Proehl regretted the conversations and the optics they created but said no decisions were made in the April 27 call and the April 30 resolution was not discussed.
RWE’s wind farm, if it moves forward, would have 50 to 75 turbines generating between 200 and 250 megawatts of power. The turbines could be 500 feet tall at the tip of the blade. RWE is collecting wind and weather information now, and this data will help determine turbine location, height and the number of turbines needed. The proposed footprint of the wind development is between 8000 and 19000 roads and Douglas and Meade roads.
Commissioner Lonie Addis is against the wind development. Kinzie and Proehl are neither for nor against it until they learn more about what RWE can bring to Labette County. Proehl’s resolution, which passed on a 2-1 vote (Addis was a no), sketched out points to be included in negotiations with RWE, from setbacks to payments. Proehl said the document is fluid, but it would have to be rescinded and new one approved to replace it.
Schmidt’s office has not responded to the Sun’s requests for information on the KOMA complaint’s resolution. The Sun was given a copy of the letter Monday from the person who filed the complaint. The letter detailed the investigation into and the resolution of the complaint.
According to the letter, Kinzie told the AG’s office investigator that he received a text from Proehl on April 27 asking Kinzie to call Proehl. Kinzie said he recalls that Proehl said he was tired of Addis requesting a moratorium on the wind development, and Kinzie said he agreed it was getting old. Proehl told Kinzie he’d reviewed several contracts between counties and wind farms regarding setbacks in Kansas, something Proehl had mentioned at public meetings before. Kinzie told the investigator he told Proehl what he thought about some of the setbacks that Proehl found in his research.
Proehl had a less specific recollection of the April 27 conversation, according to the AG’s letter. Proehl said he expressed his frustration with the behavior of out-of-county residents at the meetings. He told the investigator that he apologized to Kinzie for leaving a recent meeting abruptly and losing his temper, something he thought was unprofessional and unnecessary. He told the investigator that he wanted to assure Kinzie he would not lose his temper in the future. Proehl also shared with the investigator that he began his research on wind developments in October 2020.
Neither Proehl nor Kinzie recalled the subjects of the brief Jan. 26 and 27 conversations.
The AG investigator wrote in the letter that she looked at a potential serial communication violation under KOMA relating to the phone calls and found none. Serial communication would be interactive communication in a series that may involve a majority of the membership of a public board. These discussions would share a common topic concerning the business of the board and are intended by any or all of the participants to reach an agreement on an issue that would require binding action. Violations of serial communications are fact specific, the investigator wrote. The investigator wrote that Kinzie and Proehl constitute a majority of the commission. Their call was interactive and they discussed commission business. But the resolution was not discussed, the commissioners told the investigator. Based on information provided, the call did not meet all elements of serial communication so the investigator declined to take formal enforcement action concerning the allegation of the April 27 call.
Formal action could include a fine or an order.
However, the investigator determined that because Kinzie and Proehl essentially had a meeting involving a majority of the board that they violated KOMA’s notice requirement. A public board must give notice of meetings to give the public the ability to attend if they so choose. The investigator wrote the formal enforcement action is not warranted to resolve the violation. But the AG’s office recommended KOMA training for the commissioners.
A Sun review of the commissioners’ phone records showed four phone calls between Kinzie and Proehl between January and May 2: Jan. 26, Jan. 27, March 18 and April 27. The January calls were a minute each. The March 18 call was two minutes.
The review also showed that Addis called Kinzie and Proehl during that timeframe.
Addis and Kinzie spoke six times: Jan. 29, Feb. 3, Feb. 15 (twice), Feb. 16 and April 30. Most of these calls show they lasted a minute, which is the minimum length of a call on the Verizon bill.
Addis and Proehl spoke 10 times: Jan. 8, Jan. 15, Jan. 20, Jan. 21, Jan. 22, Feb. 2 (twice), Feb. 13, Feb. 15 and Feb. 18. The longest call was 21 minutes on Jan. 8. The shortest was two minutes on Feb. 15, the records show.
Kinzie said the April 27 call with Proehl started out innocent.
“It wasn’t nothing. He said his ideas, and I said mine, and that was it,” Kinzie said.
He said he and Proehl discussed setbacks but not the resolution. He didn’t recall the January calls but thought they probably related to an upcoming meeting on the wind farm. The commission met with Brandon Hernandez, an RWE representative, on Jan. 29 and had a meeting on the wind development at Edna Grade School on Feb. 22.
“None of them were nothing except one where it turned into supposedly a meeting,” Kinzie said of the April 27 call.
“It was a poor judgment on my part. I accept the AG’s office findings. The case is closed,” Kinzie said. He said he was ready to move forward.
He said phone calls between commissioners are not uncommon, which Addis touched on as well.
Proehl said he, too, was ready to move forward.
He said the subject of setbacks came up on April 27. He researched setbacks from across Kansas relating to wind farms. He said he and Kinzie did not discuss what setbacks should be.
“But it’s a good lesson to learn,” he said of the AG’s investigation and findings.
“We need to retain the utmost integrity and the appearance of it.”
He said that is his regret through this situation.
“While nothing happened, it gave the appearance that it could have been,” Proehl said.
Addis apologized to Proehl at Monday’s county commission meeting for the calls he made to him when he tried to answer Proehl’s questions outside of meetings. Though the AG’s investigation related to Kinzie and Proehl, Addis said he realized he was not without fault because of his calls to the commissioners. He said he made lengthy phone calls to Proehl. He said he’s not apologizing for all the calls to Kinzie because some related to an emergency situation to secure a building during the cold snap in February. Kinzie was handling that situation for the commission.
Addis said his calls to Proehl related to questions Proehl asked him on the workings of county government, including the budget process. Addis said he remembered when he became a commissioner 38 years ago he didn’t have many people to turn to who could tell him how to be an effective commissioner. So he wanted to share his experience and knowledge base with Proehl as much as he could, Addis said. Kinzie was a commissioner for 12 years before he left the commission in 2013.
Addis said those calls were his fault and he should have known better. Proehl thanked Addis for the apology.
But Addis said commissioners do stay in contact at times outside of meetings, especially in disasters or emergencies.
“But there’s common sense that’s got to be at play in this. You have a job to do. I have a job to do,” Addis said.
“You can’t have duplication of services,” Addis said about disaster responses and trying to direct resources. He said he spoke with former commissioners by phone during the tornado in 2000 in Parsons and the ice storm after that in Chetopa.
Addis added that he’s never tried to hide anything or do business behind the public’s back. He said he tries to be as up front as he can be.