Hays Post
ELLIS — The top vote-getter in the Nov. 8 general election could be denied a seat on the Ellis City Council.
Dena Patee, who won one of three open seats on the council, was informed after votes were tallied that the city’s attorney believes her incompatible to serve because of her employment with the Ellis Alliance.
It was the first time potential incompatibility was raised, Patee said Friday.
“There was nothing mentioned at all,” she said. “But when I did meet with the lawyer … I was told that someone from the city was supposed to have contacted me, but they forgot.”
Patee met this week with the city’s attorney, Olavee Raub, who drafted the Nov. 10 letter.
“After conferring with the League of Municipalities it is our understanding that your service on the governing body for the City of Ellis is an incompatible office with your employment with the Alliance,” the letter stated. “My research, inclusive of Attorney General Opinions, concurs with this analysis.”
With 447 votes, Patee was the top vote-getter in the Nov. 8 election, which unseated two incumbents. Incumbent Jolene Niernberger (403 votes) and newcomer Susan Eaton (351 votes) also were elected to seats on the council. Martin LeBarge, Nan Brown and incumbents Gary Luea and John Walz were the other candidates.
On Monday, the Ellis City Council is expected to decide whether to seek a Kansas Attorney General’s opinion on the matter.
Ellis Mayor Dave McDaniel said potential conflict of interest concerns were raised after Patee’s election.
“Questions started arising because she is employed by the Ellis Alliance, which is a tax-funded organization,” he said. “That would, in my mind and other people’s minds, create a conflict of interest.”
A potential conflict of interest, he said, would force Patee to abstain from voting on certain issues.
“After the questions started coming in, Olavee decided she better talk to the League attorneys,” McDainel said.
McDaniel said he was surprised to learn the League of Municipalities advised Patee’s service would not be a conflict of interest, but that she would be incompatible for office.
“I figured it was perhaps a conflict of interest, that she could abstain from voting on certain issues,” McDaniel said. “A lot of people are upset about this because she was elected by an overwhelming majority.”
Patee has served a director of the Ellis Alliance since its formation in July 2007. Of the group’s approximate $34,300 budget, the city of Ellis contributes $12,500. Other primary stakeholders include Ellis County, the Community Foundation of Ellis and the Ellis Industrial Development Corp.
Raub is scheduled to appear before the Ellis City Council at 7:30 p.m. Monday to present findings and ask for permission to consult the Kansas Attorney General for an opinion.
McDaniel, who can only offer a tie-breaking vote in his position as mayor, said the situation remains uncertain.
“There’s still gray issues, many gray issues,” he said. “It’s a bad situation. … We’ll have to see what the end result is.”
Patee appears poised to continue to seek her seat on the council.
“For me, I guess I’m going to wait and see what the council says,” Patee said. “If need be, I’m going to contact my own lawyer.”
She added she has been in contact with the attorney general’s office, who told her an opinion is not binding, but would carry weight in court.
“I honestly don’t think it would go forward because, after that, they’re going to have to sue me,” she said, noting if forced to choose between a seat on the council and her position with the Alliance, “I haven’t got that far.”
According to the Kansas Government Journal, there are three factors that could lead a candidate being incompatible for office, as determined by Baker v USD 501. The first is one cannot be an employee and serve as an elected official of the same government entity.
A second factor is that one cannot serve in the same office that keeps check upon another. For example, the Journal notes, one could not serve as both city treasurer and city clerk, because the treasurer’s duties include serving as a check to the clerk’s.
The third factor is that the functions of the two offices can be deemed incompatible.
“For example, if one has the responsibility to vote on budgets for two separate entities, where setting one budget might impact the decision-making of the official in setting the other budget, the positions might be incompatible,” the Journal states. “Just abstaining from voting does not cure the incompatibility problem, because the public is deprived of a fully performing public official in the office, unless the positions only incidentally raise a fee compatibility issues.”
Raub was unavailable for comment Friday afternoon.