City calls for vote on county road funds
Council to challenge petition in court; mayor makes unsuccessful bid to block lawsuit
Tonganoxie's city council and mayor kicked up lots of legal dust Monday night. And it took until Tuesday to sort it out.
The bottom line is:
- The council called for a special election on a petition that was filed earlier this month. Voters will settle this question: "Be it ordained that the governing body of the city of Tonganoxie to not contribute financially to the proposed Leavenworth County Road No. 1 turnpike interchange project."
- The council, however, will file a lawsuit in Leavenworth County District Court, challenging the legality of the petition.
Those two decisions -- made Monday night -- came after some unusual action on the parts of the council and mayor during a meeting that attracted nearly 50 people.
How it unfolded
After meeting behind closed doors with city attorney Mike Kelly to discuss a legal matter, council members voted, 4-0, with member Jim Truesdell abstaining because of potential for conflict of interest, to set the special election. The petition sought a vote on whether the city can spend any money to help upgrade Leavenworth County Road 1 south of town. The upgrade is a necessary move for a new interchange on the Kansas Turnpike. Truesdell works for an engineering firm that is involved in the project.
But then, things got more interesting.
The council, on a 3-1-1 vote, with Truesdell again abstaining and council member Ron Cranor opposed, agreed to order the city attorney to file a lawsuit in Leavenworth County District Court, seeking a judge's opinion on the legality of the petition.
And that's when Mayor Dave Taylor did something that sent the city attorney to his law books.
The mayor vetoed the council's motion.
And immediately, council members questioned whether the mayor had the authority to veto a motion. He legally can veto ordinances. But Kelly -- after a half-block trip to his downtown law office to do some quick reading -- said the law doesn't speak to whether the mayor can veto motions.
"Nothing says you can," Kelly told the mayor. "But nothing says you can't."
And Kelly said a 3/4 vote of the council -- in this case, four members -- would be necessary to override the mayor's veto. With Truesdell's necessary abstention and Cranor's previous no vote, an override was doubtful. But council member Jason Ward was willing to give it a try.
"I move that should you have the authority to veto the prior motion, that we override your veto and that we reiterate the council seeking a legal opinion to challenge the legal authority of the petition as a valid referendum," said Ward, himself an attorney.
That override attempt failed on a 3-1-1 vote.
"I didn't anticipate that," Ward said of the mayor's veto.
A quick ruling
Linda Scheer, county clerk, said Tuesday that she wasn't sure whether an election would be held in December or January, but added she's hopeful legal questions will be settled soon.
"I would hope I would have notice from the judge by Dec. 1," she said.
The petition is seeking to block the city from spending any money on the upgrade of County Road 1. The county will use sales tax revenue, as well as funding from the federal government and the Kansas Turnpike Authority, to widen the narrow county road. City officials have said they would consider spending up to $2.8 million on the project -- but they have committed no exact amount of funds.
On Tuesday, Kelly did more research and talked with officials at the Kansas League of Municipalities -- and determined the mayor cannot veto a motion. So the city will move forward with both the election and the legal challenge to the petition.
"He has veto power in certain circumstances, but not this one," the city attorney said.
That's disappointing to the mayor and Cranor.
"I just felt people had a right to vote," the mayor said Tuesday. "The petition was circulated by voters who were registered. I feel it's the only way the general public can speak to city officials and government, to have that right."
And while he wasn't sure Monday night whether he could veto the motion on the lawsuit, he decided it was worth a try.
"I think it's a way that the mayor can get his voice out to the public, because he carries no vote," he said. "He has to do the best he can to let the public know how he feels. This is one way."
Taylor said he's concerned about spending city funds on a county road.
"I think we should look at our own city first," he said, citing needs such as sidewalks, a new fire station and city hall.
"I favor the interchange," he added. "But I favor it in a way where we're responsible in what we vote on, in how we approach it."
He said he believes the cities of Lawrence and Eudora, as well as Douglas County, should be in on discussions about the interchange.
"I think that's what we should be doing right now and have a open meeting," he said. "This is just too big for one city."
And the mayor made a political decision after Monday night's contentious council meeting.
He'll seek re-election next spring.
"I decided at midnight," he said.
While Cranor may agree with the mayor about residents' right to vote on whether to spend funds to upgrade County Road 1, they disagree on seeking re-election.
"You've got to be out of your cotton-pickin' mind," Cranor said, when asked if he would run again for the council.
Cranor said he's reluctant to commit city funds to the project.
"I think we should be very, very cautious how we expend our funds," he said.
"I look around and I see all of the homes for sale in that town right now, and it doesn't give me a warm and cuddly feeling. The bubble could burst. I feel I'm a steward of the public funds, and I want those funds to be spent appropriately. I don't like to frivolously go out here and spend money."
Going to court
One of the petition supporters said his group would meet on Sunday to determine their next move and how they would handle the city's court challenge. Roger Shilling said he's disappointed in the city's action.
"The city council has decided, 'We don't care what you want. We're going to force it down your throats, whether you like it or not,'" he said.
But council member Ward said he believes the city's legal challenge to the petition is to protect the city from being ruled by petition.
"When we looked at the issue and looked at the statute in relation to the petition, the question was presented whether the city's control of money for County Road 1 was an administrative function or a legislative function," Ward said.
He believes it could be regarded an administrative function -- and, therefore, not something that can be challenged by petition.
"If we were to put it to a vote and set a precedent of having something going to a vote that truly was an administrative function, we would be setting bad precedent," he said.
The city council will meet in a special meeting at 7:30 p.m. Nov. 2 to discuss an agreement with the county on County Road 1.
"In light of the action tonight, I still would like to continue business as usual," City Administrator Mike Yanez said Monday night.
Yanez said he's also submitted a request to the Kansas Department of Transportation to upgrade U.S. Highway 24-40 between Kansas Highway 16 and Honey Creek Road south of town.
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