An attorney for concerned landowners in Republic County, opposed to wind farm development by NextEra energy, has filed a Kansas Open Records Act Complaint with Kansas Attorney General Kris Kobach.
Ryan Kriegshauser, with Kriegshasuer-Ney, is alleging multiple violations of KORA by the Republic County Commission.
“Our law firm represents a group of concerned landowners in Republic County, Kansas. We are currently investigating whether Republic County Officials engaged in serial communications agreeing to a wind farm proposal, the ‘High Banks Proposal’ outside of open meetings and possible conflicts of interest related to the proposals and possible personal benefits granted to Republic County Officials,” the complaint reads. “This investigation has been met with a lack of transparency and attempt to shield documents from disclosure in violation of the Kansas Open Records Act.”
Kriegshauser’s firm had asked for “All communications, in any form, including but not limited to email correspondence, text messages, any other electronic communications application, meeting notes, call notes, message logs, etc. between Trish Voth Blakenship … on behalf of the County with High Banks, LLC, NextEra Energy, Inc. or any representative, agent, or subsidiary thereof, including, but not limited to Alan Claus Anderson.”
The county asserted attorney-client privilege — which is an exception to KORA — and also claimed they did not have a copy of any of the documents asked for.
Kriegshauser was also seeking any waivers of conflict of interest between Blankenship and the county, billing records, and any third-party financing agreement to pay Blankenship.
At issue is a practice Kriegshauser said has been fairly common across the state when NextEra wants to put a wind project in a county. NextEra hires an attorney for the county to negotiate with NextEra.
“Counties should not play games with open government,” Kriegshauser said. “Here, NextEra paid for counsel for Republic County to act as their adversary in the negotiating process. First, the County tried to assert attorney-client privilege in the communications between counsel for both parties as if they were one single entity. Now, they claim they don’t have any responsive documents because their lawyer has them. We are confident the Kansas Attorney General will not stand for a local government hiding its communications with a company on a very public issue.”
One of the major assertions Republic County made was that Foulston Siefkin is an independent contractor and, therefore not a “public entity” under KORA.
However, Kriegshauser asserts that while that is true, the case file is the property of the county, not Foulston Siefkin, and therefore subject to the act.
Why is NextEra paying for an attorney to negotiate against them?
Republic County is far from the first county to have an attorney paid for by the wind developers to negotiate against … the wind developers.
“NextEra has been going around to the smaller counties and saying, ‘Hey, we want to put a wind farm in,'” Kriegshauser said. “Usually, there’s a lot of … grassroots opposition to it.
“And so NextEra says, ‘look, these are complicated contracts and complicated issues. We understand that your county counselor probably isn’t well-equipped to deal with all of this. So we’ll pay for your counsel. And they will represent your interests in negotiating against us on putting in these wind farms.'”
According to Kriegshauser, the contracts almost invariably end up going to Blankenship.
His concern is that since NextEra is paying Blankenship, it is not out of the realm of possibility that she is — perhaps less than objective when representing the county.
“She basically provides backbone to the county commissioners to force the projects through,” Kriegshauser said. “The truth is Trish Voth (Blankenship) is more friendly to NextEra than Republic County. She’s more beholden to NextEra … I mean, they’re the ones who are paying the bill. Citizens are rightfully indignant about this.”
Kriegshauser said “third-party payer” agreements are not uncommon and do have clauses saying the third-party payer does not direct the representation.
“All that’s in there, but it just doesn’t smell right,” he said. People rightfully want to see the communication, like, how hard did she fight for Republic County’s interests, or what did [she] just roll over on everything NextEra asked for?”
Moreover, and of equal concern to Kriegshauser, is what he called questionable terms in the contract between NextEra and the county.
“They included some things that could be viewed as personal benefits,” he said. “Basically, the commissioners got indemnified if they are challenged by recall. NextEra is basically saying, ‘Hey, if you go through and put in this wind farm, will provide you a defense on your recall campaign.”
Ultimately, Kriegshauser said, the issue is a lack of transparency and that claiming case files that belong to the county is “work product” or covered under attorney-client privilege would allow counties to simply bypass KORA for many things by hiring outside counsel for any legal issues.
“Why wouldn’t you?” he said. “Why wouldn’t you just not ever have an employee county counselor? You just have a contract with a firm like ours?”