"Another Law Broken by our City Commissioners?"

12-16,121

Chapter 12.--CITIES AND MUNICIPALITIES

Article 16.--MISCELLANEOUS PROVISIONS

12-16,121.

Paving material's provided by cities and counties; limitations.

(a) As used in this section and K.S.A. 12-16,122, and amendments thereto:

(1) "City" means any city.

(2) "County" means any county.

(3) "Governing body" means the governing body of any city and the board of county commissioners of any county.

(4) "Paving material" means crushed rock, asphalt, gravel, aggregate sand or other materials used to pave roads, streets and drives.

(b) Except as provided in subsection (c), the governing body of any city or county shall not sell or otherwise provide paving material to any private person or private entity.

(c) The provisions of subsection (b) shall not apply if the governing body has:

(1) Made a determination that such paving materials are not readily available from a nongovernmental entity; or

(2) adopted a resolution declaring the existence of a disaster, emergency or the threat of disaster or emergency.

History: L. 2001, ch. 111, § 1; July 1.

(emphasis above mine.)

When choosing to do $160,000 worth of paving for the theater did the city violate this law?

If they made a determination that such paving materials are not readily available from a nongovernmental entity then they must have forgotten that not long ago a case regarding this was taken before the state appellate court by Heckert and Se-Kan Asphalt Services. City Attorney Bob Farmer was there, didn't he remember?

Here is a link to the courts decision: http://www.kscourts.org/kscases/supct/2004/20040625/90872.htm

Here are a few sections of the courts findings, (again, emphasis mine):

The opinion of the court was delivered by GERNON, J.: Heckert Construction Company, Inc., (Heckert) and SE-KAN Asphalt Services, Inc., (SE-KAN) challenge the sale of asphalt paving materials by the City of Fort Scott (City) to private citizens and entities. Heckert and SE-KAN claim that the City is selling asphalt paving materials from its municipal asphalt plant in violation of K.S.A. 12-16,121. We agree.

The language of K.S.A. 12-16,121 is unambiguous. The legislature's clear intention for K.S.A. 12-16,121 is to prevent local governments from competing with the private paving material industry as long as paving material is readily available from a private company. The key question to resolving this dispute is the meaning of the phrase "readily available from a nongovernmental entity" in K.S.A. 12-16,121.

Also I noticed in the "Countryside" edition of the Fort Scott Tribune, a paving company from Prescott, Kansas who is advertising that they do city streets, airports, parking lots etc. It certainly appears to me to be against the law, and I don't think that the commission can use the excuse that "they didn't realize it." Their attorney should have let them know, and the long term commissioners WOULD HAVE KNOWN.

What do you think?