February 24, 2024

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Is Ethics Advisory Board ruling on solar project politically motivated?

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Some people in Johnson County believe a recusal order by the Ethics Advisory Board is selectively applying ethics guidelines to keep Planning Commission members opposed to a potential solar project from being able to vote.

Michael Levin, who was appointed to the Johnson County Planning Commission in April of 2021, by Johnson County Commissioner Charlotte O’Hara, was told by the Johnson County Ethics Advisory Board he would have to recuse himself from any vote on a potential solar power project by NextEra Energy — the same company currently applying for status as a public utility in front of the Kansas Corporation Commission.

The reason? Levin has, for nearly 30 years, been a deputy with the Johnson County Sheriff’s Department and the ethics board claimed his boss — Sheriff Calvin Hayden — testified in opposition to solar regulations.

The opinion was in response to an ethics complaint by Commissioner Teri Atwell accusing Levin of a conflict of interest because of his employment.

In a copy of an appeal of Levin’s recusal, obtained by the Sentinel, two legal advisors to Johnson County stated the reason was Hayden’s opposition to regulations.

On Dec. 12, 2021, Richard Lind stated: “During the public hearing before the Johnson County Planning Commission on November 16, 2021, Sheriff Calvin Hayden made a statement as to his opposition to the solar farm regulations currently being proposed.”

Robert Ford referenced this in another email to Levin on March 21 of this year: “During the public hearing before the Johnson County Planning Commission on November 16, 2021, Sheriff Calvin Hayden made a statement as to his opposition to the solar farm regulations currently being proposed.”

However, the minutes of that meeting belie the idea that Hayden was opposed to any regulations the county might be contemplating — but only that he had reservations about solar power in general and about this particular project.

“You’re acting like this is a done deal, and that’s not right, Jim. That’s not right,” Hayden is quoted in the minutes as saying. “So I think there’s a lot of issues. Wabaunsee County has put a moratorium on these. McPherson has put a moratorium on these. I think you guys need to follow the science here.”

Moreover, Levin writes, he has attempted many times to get county officials and planning commission employees to use his personal, rather than professional, email address for planning commission business — to no avail.

The real issue, however, seems to be that Levin voted to reduce the maximum area of a solar farm from 2,000 to 1,000 acres and a presumption that Hayden’s comments — which had nothing to do with the regulations under consideration — had caused him to change his vote.

“Per Mr. Lind’s email dated December 12th, another potential issue was, ‘After Sheriff Hayden’s statement, you reversed your original position that you took and voted upon at the Planning Commission meeting on October 26, 2021, thereby reducing the maximum area of a utility-scale solar from 2000 acres to 1000 acres,'” Levin wrote. “First and foremost, as the meeting minutes demonstrate, I did not “reverse” my position.  Had Mr. Lind or any of the Johnson County Legal department inquired as to why I adjusted my posture, it would have been a quick and easy discussion.”

Levin said he changed his position based on new information, pro and con public input, and voted for the 1,000-acre cap as a way to try to find a “win-win” solution.

“It should also be noted that I was NOT the only commissioner who ‘adjusted’ their posture at the November 16th, 2021, meeting,” Levin wrote. “In previous votes related to this topic, the commission was split with members on both sides of the proposed motion.  When the motion was made to reduce the project cap (per the meeting minutes), the motion passed unanimously.  Therefore, clearly demonstrating other commissioners also felt a change in direction was needed and appropriate.”

Ethics complaint appears politically motivated

Kansans for Responsible Solar notes that multiple issues exist on the planning commission and have for some time.

In a release responding to Levin’s recusal order, KRS pointed out the planning commission is required by both its own bylaws and state statute to have 12 members — nine of whom were required to live in the unincorporated areas of the county — but until April 7 of this year the commission had just 11 members and only eight of them lived unincorporated areas.

Atwell was appointed by Johnson County Commission Chairman Ed Eilert to bring the board into compliance. Moreover, two board members have continued serving despite their terms having expired over six months ago and without being reappointed.

Atwell’s complaint came after three members of the commission were forced to recuse themselves after actual conflicts of interest came to light.

In the fall of 2021, the Chair, Christopher Iliff, recused himself when CRS complained that Mr. Iliff had a professional relationship with the lead attorney, John Peterson of Polsinelli Law Firm, representing NextEra Energy, the sole solar energy company participating in the proposed solar zoning regulations process. 

Planning Commission Vice-Chair Randall Hutchins also recused himself, having served as the President of the Johnson Farm County Bureau, an agency that has facilitated NextEra Energy’s efforts to connect with local farmers about land leases for solar farms.

Planning Commissioner Lindsay Grise recused herself for conflict of interest, as she is employed as a Senior Attorney for Burns & McDonnell, which is performing work in another state for NextEra Energy. 

All of those conflicts were clear and involved work for NextEra, potential financial gain, or the potential of inordinately close ties to someone working for the energy company.

Levin, by contrast, doesn’t even report to the sheriff as part of his daily duties.  Further, Levin is specifically protected by Civil Service regulations from being fired simply because he didn’t agree with his boss on a matter that doesn’t involve the sheriff’s department at all.

Levin notes this makes it quite clear that he was targeted — not because of any conflict of interest — but because of his vote.

“These important points should have been brought to the attention of the Ethics Advisory Board,” he writes. “The fact they were omitted demonstrates an effort to have them reach a foregone conclusion.”

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