No guardrails: county government is ripe for abuse
(series: What's the matter with Douglas County, Kansas?)
Douglas County is currently facing a lawsuit based in part on the activities of one rogue commissioner: Karen Willey. And – while it’s disheartening that one biased decision-maker may have gone behind the scenes to manipulate the outcome of a quasi-judicial proceeding – the truth is, something like this was bound to happen.
County government has little in the way of checks and balances
At the federal and state levels, there is a distinct separation of powers – legislative, judicial, and executive – designed, ideally, to keep our democracy on the right path. (The legislative branch is even set up with a body that helps to balance the power differential between high-population states and more rural and/or smaller states: the Senate, where every state has two senators.)
In Douglas County the lines are considerably more blurred. Okay, there are no lines.
Here in Kansas’ fifth most-densely populated county, the entire government is essentially run by three county commissioners (and one county administrator). Three people – one of them unelected – adjudicate every permit application and zoning variance and they approve or deny the county’s ordinances, regulations, and policies. On top of all this power, they oversee the administration of the county, its budgets, bids, jobs, etc…
The planning commission has limited autonomy
and negligible authority
While we are lucky to have some conscientious, thorough, and fair-minded planning commissioners, in reality, the body as a whole has little ability to balance or check the power of county commissioners (or staff). Half the planning commission is appointed by the three county commissioners. And reappointed at their discretion. Additionally, whatever ruling the planning commission comes to, it goes to the BOCC as nothing more than a recommendation. To clarify:
The planning commission’s role (except for the Comprehensive Plan) is advisory. They may spend hours and hours synthesizing the information and feedback (heavily relying on staff research, guidance, and gatekeeping) and still the three county commissioners can dramatically alter much of what comes before them and they can pass* or deny each permit application however they want.
(Especially if the land-use ordinances have been watered down, like the updated wind regulations, which removed the word “shall” i.e. must; changed “conditions required for approval” to “key factors”; and added language that allows the BOCC to reduce setbacks and exceed turbine height limits at the permitting stage.)Our county’s planning commission, or rather the “Lawrence-Douglas County Metropolitan Planning Commission,” is set up as a combined city-county entity, evaluating both Lawrence and county land-use ordinances, regulations, zoning issues, and Conditional Use Permit applications. (TBUs, or Temporary Business Use permits, bypass the planning commission and go straight to county commissioners for approval.)
This 10-member (metropolitan) planning commission is entirely appointed: five by the city commission and five by the county commission. (Ostensibly five from Lawrence and the other five from rural Douglas County, Eudora, Baldwin City, or Lecompton… however, in July 2022 – as the planning commission was beginning to draft new wind project regulations – the three county commissioners happened to appoint a Lawrence resident, one who coincidentally works for the firm representing NextEra, the wind project developer leasing land and installing diagnostic Met towers and SoDAR units all over southwest Douglas County.)
*If a group of affected residents, generally those within 1,000 ft of a project, submit a protest petition against a Conditional Use Permit (CUP) application (within 14 days), it must be passed by 3/4 of the BOCC, i.e. unanimous for a three-member board or four for a five-member board.
How three county commissioners obstructed the board expansion…
Not long after the 2020 election – which resulted in a county commission composed entirely of Lawrence residents – rural residents began to feel uneasy about having no elected representation in county government. Some subsequently reached out to the local Farm Bureau and by 2021 Douglas County Farm Bureau board member, Steve Crane, was in regular communication with county officials urging them to expand the county commission from three districts to five. Finally in the summer of 2022, as concerned citizens were poised to start a petition campaign at the state fair, the three incumbent county commissioners finally acquiesced and agreed to put the following referendum on the ballot (just a few months down the road):
“Shall the Governing Body of Douglas County, Kansas, increase its number of commissioner districts from three to five?”
The measure was passed by Douglas County voters in November 2022. Most people assumed erroneously that it would be followed by a Special Election to select the two additional commissioners.
However, it took another month for the existing BOCC to offer up potential configurations for the new 5-district map (many of which they’d actually drawn up themselves). At the first BOCC hearing on Dec. 7, 2022, there was a full-house, as the predominantly rural crowd waited hours for the “County Commission Redistricting Recommended Motion” which was scheduled at the end of the night (after hot topics like rezoning 15-acres to light industrial, funding a street crossing, the fire department’s risk assessment standards, and an update from the Kansas Holistic Defenders).
At the BOCC meeting a week later, the writing began to appear on the proverbial wall: the three county commissioners intended on blocking the Special Election.
Commissioner Patrick Kelly lamented that the 90 day window for a Special Election, as determined by Kansas law, would not be enough time for voters in the new Districts 4 and 5 to get to know the candidates. “I think there’s a real value,” he said, “in having a long election cycle”.
Commissioner Shannon Reid said she too thought that delaying the election of the additional commissioners for two years “increases the opportunity for democracy”.
And Commissioner Willey – who only four months earlier had been appointed to the board by a group of 28 Democratic precinct heads in District 3 – asked Elections Officer Jamie Shew how many precinct heads would get to select each party’s candidates. Then she audaciously posited that she was concerned that the number of precinct people involved in that decision would be too low to be democratic: “I think that’s a significant point… because we’ve heard about democracy and getting sure that people have a voice in this and the Special Election limits who gets to chose who runs in that election.”
Four days before Christmas, the three county commissioners finally picked a 5-district map. However, they forwarded the map to Governor Kelly… with a recommendation to deny a Special Election, effectively scuttling the election of two more commissioners and denying Douglas County citizens the diversity, equity, and representation that they had voted for. (See below.)
For a point of reference, compare Douglas County to how Reno County (population 61,517) handled their board expansion. Before the election, the county commissioners had the IT department come up with a 5-district map, independently, and put the map on the ballot with the referendum and agreed to cut their own salaries to $10,800/year to accommodate two additional commissioners. (A Douglas County commissioner makes around $50,000/year.) They did wait until the General Election… because it was the next year. Commission Kelly liked to point out that two other counties who also voted to expand their boards in 2022 weren’t going to have a Special Election either, but it’s a little more understandable for tiny counties like Brown and Pottawatomie with populations of just 9,500 and 25,300 respectively.
How to fix a broken system
So – besides voting out the two incumbents who effectively delayed the expansion of the Board of County Commissioners until January 2025 and then spent those two years ignoring constituents and pushing through own ideological wishlists – what’s a citizen to do?
Granted, it’s a lot of work to try to stay on top of all of it, especially when it’s so hard to find out what’s going on. Historically, the county’s enigmatic “public announcements” are buried among all sorts of information and released at weird times (like the announcement for the controversial wind regulations hearing, published on New Year’s Eve); the website(s) are equally inscrutable; and the minutes are notably vague.
Hang in there and stay engaged. We’ll finally have five county commissioners in January – fingers crossed that four of them are new.
I do think it’s time to end the combined Lawrence-Douglas County Metropolitan Planning Commission, once and for all. The “hinterland” outside of Lawrence – with its multitude of communities, fast growth, and unique issues – needs its own separate planning commission composed of people from those areas.
And the county should draft new bylaws that document a commitment to transparent government and ethical conduct.
You might not know it from our BOCC, but the Kansas County Commissioners Association already has a Code of Ethical Conduct. “Stewardship of the public trust,” it states, “obligates a county commissioner to act in ways consistent with the highest standards of ethical conduct” including:
Making a “good faith effort to communicate the full truth about county matters and avoiding “structuring information so as to mislead.”
Showing dedication to the “spirit of open government” which is characterized by “the broadest possible provisions for public access and information sharing.”
Performing the duties of public office “with fairness and impartiality so as to enhance public confidence in county government.”
Abstaining from voting “even if not required by law if his or her impartiality might be reasonably questioned.”
But a code of conduct, much like a moral compass, only works if people choose to use it.
