FORT SCOTT, Kan. — The Bourbon County Commission narrowly established a prioritized shortlist of five law firms Monday to investigate potential defaults within an unspecified county contract.
The selection followed debate over ethical conflicts and the transparency of the legal recruitment process, which began after an April 14 executive session attended by state representatives, Fort Scott City Manager Brad Matkin and an attorney representing Freeman Health Systems.
District 4 Commissioner Gregg Motley, whose role as point person for the process was reaffirmed in a 3-2 board vote at last week's meeting, presented the list and said he selected the firms based on his professional experience with the attorneys, as well as their expertise in real estate law.
Motley said the firms would be contacted in order, moving to the next only if the previous was unavailable or unwilling.
"The reason there's four is in case that there's a conflict or a lack of bandwidth or they don't want to do business in Bourbon County, then we'll go to the next one." Motley said.
At the request of District 5 Commissioner Milburn-Kee, the commission voted unanimously to add Fisher, Patterson, Sayler, & Smit, a firm that has represented both the County Commission as well as the Bourbon County Sheriff’s office, to the list.The final list of firms, in order of priority, was:
1) Polsenelli Law Firm - Kansas City, MO
2) MSB Law - Overland Park, KS
3) Duggan Shadwick Doerr & Kurlbaum LLC - Overland Park, KS
4) Lathrop GPM - Kansas City, MO
5) Fisher, Patterson, Sayler, & Smith - Overland Park, KS
Commission Chairman Samuel Tran objected to the inclusion of Kansas City-based Polsinelli Law Firm, citing concerns about potential conflicts of interest tied to the firm's previous dealings with solar projects. Tran also alleged Polsinelli had represented other entities involved in the undisclosed county contract under review.
Tran said he had spoken to County Counselor Bob Johnson prior to the meeting regarding Kansas Rule of Professional Conduct 240 1.7, which defines the difference between waiverable conflicts of interest (in which all affected parties can sign off in writing and allow the attorney to proceed) and non-waiverable conflicts of interest.
"So basically what it says is there are waiverable [sic] conflict of interest and then there are non-waiverable [sic] conflict of interest," Tran said. "And in this instance, I believe that with Polsinelli, it's a non-waiverable conflict of interest."
Johnson said he did not know if Polsenelli had a conflict of interest.
“I mean, it's been brought up by others and there could be a conflict,” Johnson said, “but they may determine they don't have one. I don't know what their involvement was prior. I wasn't here.”
Commissioner David Beerbower said that the firms themselves are responsible for identifying and disclosing any ethical conflicts. He maintained that a potential conflict should not automatically disqualify a firm from being included on the initial shortlist.
In an interview with the Bourbon County Monitor after the meeting, Motley said he would not choose a firm with any conflicts, even if they are waiverable.
“I'm not going to accept any kind of conflict waiver.” Motley said. “We've got enough good firms that [I] just want this process to be clean.”
Motley said that while firms are responsible for conducting their own conflict checks, the consequences for taking a case with a conflict are severe, as the Kansas Supreme Court can impose penalties including suspension or disbarment.
During the commission discussion, Milburn-Kee requested that the commission hold the discussion in public to clarify the specific instructions given to the attorneys.
"Can we move this discussion to the public, please, so we can talk more freely about what we're asking them to do because I don't even know what we're asking them to do," Milburn-Kee said.
"Review a contract. That was the original motion three weeks ago," Motley responded.
Motley moved to adopt the list in the specified order, which Beerbower seconded. The motion passed in a 3-2 vote, with District 3 Commissioner Joe Allen voting in favor, and Tran and Milburn-Kee voting against.
The Bourbon County Monitor will continue to follow this story as it develops.
