To: County Commissioners

From: G. Craig Weinaug, County Administrator

Date: 2/21/03

Re: Home Rule Charter possibilities for Douglas County Government

Background

County government in Kansas operates with the same basic structure that was established in 1868, seven years after the birth of our state. Obviously there have been many changes made to the laws that determine the operating details of counties since that time, but the basic operating structure (who is elected, and the authority and responsibilities of the elected officials) is generally unchanged.

Both nationally and within the State of Kansas, the operating structures for cities and school districts have experienced significant change since the early twentieth century. The most significant change for cities occurred in the early to mid twentieth century as reform movements worked to remove corruption from the city governments. The best known leader of this movement was Richard Childs who pushed a concept called the short ballot. He contended that local government tended to be inefficient because there were too many elected officials. None of them had sufficient authority to operate more than a small piece of the organization, so there was no one that could be held accountable for the results. There were so many officials on the ballot that the typical voter was not in a position to research who was doing a good job and who wasn’t. As a result, mediocre officials were reelected in spite of their performance. He argued that this problem did not tend to occur as frequently with the federal elected officials, because each citizen voted for the president every four years, a congressman every two years, and a senator every two to four years. The voters’ decisions were few, enabling the voter to make better choices.

He developed a charter that was modeled after the typical organization of a business. The citizen would choose only the members of the city council who would serve as the policy making board for the local government, and they would hire a manager based upon his training and experience to administer the local government on a day to day basis. The manager would be accountable to the council to carry out their policies. The manager who was inefficient in running the government on a day to day basis, or who failed to carry out the policies as set by the council, would be fired. The voters would not have to wait for the next election remove an incompetent, dishonest, or unresponsive chief executive officer.

This model became the basic framework for the vast majority of cities in the United States with more than 3,000 population, and less than 500,000 population. The very smallest cities often cannot justify the expense of a manager, and most of the largest cities still rely on a strong mayor form of government.

While these changes were taking place in city government, county government did not change much for various reasons. Probably the most important reason was that county government is more of an extension of state government, while cities have a long history of charter government that can be changed by the voters in that community based on local needs. Even today, the Kansas constitution only provides for home rule charters for urban county governments. By statute, only Johnson County is defined as an urban county. All other counties, including Sedgwick, Wyandotte, Shawnee and Douglas County, are not defined as urban counties and as a result cannot develop a home rule charter that can be considered by their voters. As a result, no other counties can even consider different structure for their government, unless the legislature enacts special legislation for an individual county, as was done for Wyandotte County a few years ago.

The basic structure of Kansas county government was developed to meet the needs of rural counties that maintained roads for horses and buggies at a time when computers had not even been imagined, and telephones were a luxury. The main concerns of the designers of the framework of county government was to make sure that no one official had enough authority to screw things up too much.

Over the years, Douglas County has fared surprisingly well within the statutory framework of county government in Kansas. In almost all cases, the voters have elected very competent administrative officials (Sheriff, Clerk, Register of Deeds, Treasurer, and District Attorney), who have tended to have long tenures. Frequently, these officials have been reelected without opposition, which has minimized the amount of partisan bickering that can often make efficient government difficult. Douglas County has been very lucky that the local political parties seem to recognize that the voters are better served by retention of the competent elected administrative officials without the rancor of election battles that often unfairly damage the reputations of the official and the county government itself.

So, if it is not broke, why fix it? It could be argued that county government could work a lot better than it already does, if it could adopt a more modern structure: a structure designed by Douglas County residents to meet Douglas County needs. The purpose of this document is not to propose what that structure should be, but rather to suggest that the political leadership of Douglas County, with input from the public, could design a system that would serve our needs better than a structure that was designed in 1868.

Issues that could be addressed by a Douglas County Charter

1) Election of County officials: partisan or non-partisan? The County Commissioners, County Treasurer, County Clerk, Register of Deeds, District Attorney, and Sheriff are all elected on a partisan basis. Historically in Douglas County, to be considered a viable candidate, a person must run as a Republican or Democrat. However, it is interesting to note that the board members of the city governments in Douglas County are elected on a nonpartisan basis. Both parties have been successful in electing very competent county officials and occasionally, they have been successful in electing officials with marginal competence. Their level of competence could not be forecast by their party label. Stated another way, there is no difference between how a competent Republican or Democrat official gets a county road paved.

With few exceptions, a county government that wastes time on partisan disputes is usually wasting time and county tax dollars trying to make the other party look bad, instead of getting the job done. Fortunately, Douglas County’s elected officials have ignored party labels after they were in office most of the time, but not always.

The argument often given for partisan local elections is that the offices then become a good training ground for higher office. However, in Douglas County there are examples of state legislators who started out in city government (nonpartisan), and county government (partisan). There is currently one statewide elected official that got her start in an elected position as a nonpartisan city commissioner for the City of Lawrence.

2) County Treasurer, County Clerk, Register of Deeds, Sheriff, and District Attorney: elected or appointed? The general case for appointment (instead of election) of a county official is that they are accountable to someone on a daily basis who can remove them from office if they are incompetent or fail to provide adequate services for the tax dollars provided to their department. It is virtually impossible to remove an elected county official from office between elections unless they steal county funds or commit some other significant crime. Even if an elected official fails to show up for work on a regular basis, there is no reasonable way to remove them from office, between elections. The additional advantage to appointment of key County administrative officials is the ability to recruit from a larger pool of competent choices for the position. The County normally gets five to thirty competent professionals that apply for key department head positions, including persons residing outside of Douglas County who are willing to move for the job. Most would not consider running for elective office because of the risks involved in the election process. An appointing authority is also in a better position to thoroughly review the qualifications of a candidate for a position than can be done through an election process.

The general case for election is that the official is accountable directly to the voters. If the official is incompetent or fails to show up for work, they can be voted out of office at the next election. If the official is appointed, and the appointing authority is also incompetent, the voter no longer has a direct means to remedy the problem.

The answer to the election vs appointment of administrative county officials issue, was addressed by Wyandotte and Johnson County, as specified below.

A) District Attorney: The District Attorney in both Johnson and Wyandotte counties has remained an official that is elected on a partisan basis. The District Attorney is actually a state official working for a judicial district. As such, a charter has not changed the method of election of this office.

B) Sheriff: The Sheriff position in both Wyandotte and Johnson Counties continues to be an elected position. In Riley County, the Manhattan Police Department was combined with the Riley County Sheriff’s Office and the position became an appointed official, but their example has yet to be followed by any other county.

C) The Register of Deeds position continues to be an elected position in Wyandotte County, and the position was eliminated in Johnson County, with the responsibilities added to the County Clerk’s Office.

D) The County Clerk became a position appointed by the County Administrator in both counties.

E) The Treasurer became a position appointed by the County Administrator in both counties.

3) Number of County Commissioners: The number of county commissioners and whether they are all elected at large or from districts has often been an issue with reorganization study committees. The Johnson County charter expanded the number of commissioners from five to seven. Six commissioners will be elected from districts, and the chair will be elected at large. All seven will be elected on a nonpartisan basis at the next election.

4) County Manager vs Full-time County Commission Chair (Elected CEO): The Johnson County charter provides for a county manager in whom is vested most of the day-to-day administrative authority. The manager serves at the pleasure of the county commission and is responsible for the execution of county policy as set by the County Commission. The Wyandotte plan also includes a county administrator.

The alternative to a county manager would be a full-time elected Commission chair in whom is vested the day-to-day administrative authority. The key advantage of an elected CEO would be the ability of the position to exercise leadership on issues even before the issues were supported by the rest of the commission. The key advantage of the appointed county manager position is the ability to recruit nationwide for the best possible candidate, and the ability to remove an administrator at any time whether or not it is an election year.

5) County Chair election by voters vs selection by County Commission Board members: The Johnson County Charter provides for election of the chair of the county commission (who does not have executive authority) by all of the county voters. Such a position arguably raises the profile of county elections and of county government as a whole. In addition it provides a position with the county that has a more prominent position for the exercise of community leadership. The potential disadvantage of an elected chair is the potential for more visible conflict when the chair’s policy positions conflict with the policy position of the majority of the county commissioners.

6) Other Issues: A county charter could address other issues in addition to those listed above. In Wyandotte County, consolidation of the city government with the county government was an issue that is not likely to be an issue in Douglas County, but there may be issues addressed that have not come up in other counties.

The Process for Considering a Change

There are two recent precedents for changing the structure of county government in Kansas: Wyandotte County in 1997 (enabling statutes passed in 1996), and Johnson County in 2000 (enabling statutes passed in 1999). In both cases, the state legislature determined the process for developing the framework of the government by statute. In the Johnson county example, the charter was in implementation of the home rule authority granted to urban counties. In the Wyandotte example, special legislation was developed and passed by the state legislature that only applied to Wyandotte County. In both cases, the special legislation did not determine the answers to the issues summarized above. Rather, the special legislation determined how the charter was to be developed, and required an election for the adoption of the resulting document. Not surprisingly, the two charters are very different because the needs (and politics) of these two counties are very different.

Since Douglas County is not likely to be designated as an urban county, the only way that our county could go through a process like Johnson County has done would be to get a bill through the legislature which would initiate a process for developing a reorganization plan for Douglas County. I have had several consultations with the Kansas Association of Counties staff about this possibility. They are of the opinion that it would be very feasible to get such a bill through the legislature if the bill limited its scope to Douglas County, and it was supported by most of the Douglas County delegation.

If the Douglas County Commission wants to start such a process, I would suggest the following steps:

1) Commissioners and/or the Administrator should meet with key community leaders to get input on the proposal to examine the structure of Douglas County. Consultations should include but not be limited to: A) Douglas County legislative delegation, B) Mayors of the four Douglas County cities, C) Douglas County leadership of both major political parties, and D) Douglas County elected officials and department heads.

2) Concurrently with #1, the County Commissioners should determine what they want included in legislation to start the process. An outline of the issues that would need to be discussed is provided below.

3) Get a commitment from as many Douglas County legislators as possible in each house to sponsor enabling legislation. The deadline for the introduction of bills by an individual legislator has already passed, and the deadline for introduction by most committees is the first week of February. However, bills can be introduced through a couple of committees through the end of the session, but it would be more difficult to do after February 26th.

4) If it is not possible to get a bill introduced in the legislature this session, and the County Commission still wants to undertake the effort, an ad hoc study committee could be appointed using whatever process is deemed appropriate by the County Commissioners. The ad hoc committee could then start the year long review process. Legislation could then be introduced in the 2004 legislative session that would build on the work of the ad hoc committee.

5) Alternatively, the commission could decide the delay consideration of these issues until next fall.

6) Appoint the committee (Spring 2003 or 2004).

7) If work of the committee were done in a year, the voters could consider a new charter in November of 2004. If a bill were not introduced until the 2004 legislative session, an enabling election could probably not occur until 2006, unless a study committee were appointed to start the work before enabling legislation was passed. Either way, there would still be an election of the same county officials in November of 2004, and the charter could not be fully implemented until the terms of these officials ended in 2009.

Issues to be addressed by Legislation

If the County Commission decides to consider the possibility of reorganization, the first step would be introduction of legislation that would determine the process and timeframe for the effort. To provide staff with direction on the preparation of legislation to be reviewed and approved by the County Commission before it is introduced in Topeka, a list of issues to be resolved is listed below:

1) Composition of Study Committee: The following is roughly based on the legislation that was used by Wyandotte and Johnson Counties and is offered as a starting point for discussion. In Wyandotte County, the study committee was comprised of five members appointed by the Governor, no more than three of which could be from one political party. In Johnson County, each of the state legislators who were residents of Johnson County appointed a member, two members were appointed by each of the political parties, the County Commission appointed eight members (one from each district and one at large), two members were appointed by the Johnson County Chamber Presidents’ Council, three members were appointed by the Johnson County Council of Mayors, and two members were appointed by the Johnson County Planning Commission. As a starting point for discussion, I suggest the following composition of the study committee:

a) Two members appointed by each of the three county commissioners,

b) One member appointed by each of the four mayors of Douglas County cities,

c) One member appointed by each of the governing bodies of the Democratic and Republican parties, and

d) One member appointed by each of the Kansas legislators that reside in Douglas County.

2) Limitation on Appointments: Both the Wyandotte County and the Johnson County legislation prohibit the appointment of elected county officials to the study committees. The Wyandotte legislation also prohibits the service of elected city officials on the committee (presumably because merger with the city of Kansas City was an issue), and the Johnson County legislation prohibits the appointment of elected state officials. It seems reasonable to prohibit the appointment of elected or appointed officials from the county, state or city as a means to avoid turf battles on the committee.

3) Timeframe for work of Committee: Both statutes require the committee to issue their final report within one year of the organization of the committee. Both also require a preliminary report which is to be reviewed at one or more public hearings, prior the completion of the final report.

4) Possible requirement to separate ballot questions: The Johnson County legislation requires that any recommendations with regard to the size of the county commission be a separate question on the ballot. Another issue that you may want to require separate ballot questions if recommended by the reorganization committee would be a change to nonpartisan county elections.

5) Impact on existing elected county officials: Under either the Johnson or Wyandotte legislation, all elected officials complete their terms in office with all of the prerogatives and responsibilities that existed at the time that they were elected. When the voters of Johnson County approved all of the recommended charter changes in November of 2000, at the same election they also elected each of the county officials that are provided by state law. The charter changed some of the positions to appointed positions, but that portion of the charter that was adopted will not be fully implemented until their terms in office expire. This requirement should be built into the initial legislation.

6) Limitation on number of study committees. The Johnson County legislation is written so that charter committees can be appointed again in the future but there has to be at least five years between each charter committee. The Wyandotte legislation was written so that it could only be used once as a basis to reorganize the local government.