New members of Jackson County Legislature also serve on school boards. Is that legal?

The Jackson County charter says county legislators must not serve two masters. To be a member of the county’s governing body, legislators must resign from any other elective office they hold.

Voters in November chose six newcomers to fill seats on the nine-member legislature. But four of those six are currently serving as elected members of local school boards, and only one new legislator said she would resign her school board seat.

Incoming 1st District legislator Manny Abarca, who is also a member of the Kansas City school board, has filed a court challenge to the interpretation of the county charter that says he can’t hold both posts. If a judge agrees, Abarca and two other new legislators could keep their seats on area school boards while also serving on the legislature.

Some current legislators are appalled and say holding both offices would present a potential conflict of interest, as county government’s actions affect school district funding. Crystal Williams went even further, calling the move an unseemly grab for power.

“I believe that them refusing, them grasping in order to hold on to as much power as possible, is basically equivalent to them lying to their constituents about wanting to represent them to Jackson County,” said Williams, who did not seek re-election after serving three four-year terms. “Whomever refuses to fulfill their obligations to the people who voted for them have basically succeeded in misleading the voters.”

Abarca says that he merely wants to finish the work he started on the board of Kansas City Public Schools.

Manny Abarca
Manny Abarca

But until the case is resolved, county business could be upended well into next year. Rather than a smooth transition to a largely new county legislature, three current legislators who were ready to leave office at the end of this year might feel compelled to stay on until their replacement is seated weeks or possibly months after their terms were set to run out.

Yet another charter provision spells that out, saying legislators “shall” continue to hold office until their successor is sworn in .

“They’re putting a lot of us in a bad spot,” said two-term 3rd District At Large legislator Tony Miller, who lost re-election to Megan Marshall, who during the campaign announced her intention to stay on the Lee’s Summit school board. “Personally, I’d like to be done, but if nobody takes office, somebody’s got to serve.”

Scott Burnett, who planned to retire after 24 years on the legislature, says he’d resign rather than stay on past Jan. 2 while waiting for Abarca to be seated as his replacement.

“I agree that they can’t serve in two elected spots,” Burnett said.

Abarca was elected to his unpaid position on the Kansas City board in 2019 and says there is more work left to be done before his term ends in 2025, including the selection of a new superintendent.

But as county officials read the charter, he can’t be sworn in as a legislator as scheduled on Jan. 2 unless he resigns from the school board first. Abarca last week filed a lawsuit against the county, asking for a declaratory judgment that would let him keep his school board seat while serving on the legislature, which pays $38,000 a year.

Abarca declined an interview, but he issued a statement to The Star explaining that he would like to fulfill the commitment he made to district families “to continue the important work that ensures the continuance of traditional public school as we know it.”

Incoming 4th District legislator DaRon McGee is not a plaintiff in the suit, but he is hopeful that Abarca gets the ruling he wants. McGee said in a phone interview that he wants to stay on the Hickman Mills School Board, where he serves as president and this week filed for re-election to another three-year term. His current one ends in April.

“We’re making some headway at Hickman Mills,” McGee said. “We raised our teacher’s pay, and we’ve worked demolishing buildings for two schools. Our enrollment is up. And so I’d like to see some projects through, but I guess we’re waiting to see whatever this says.”

Marshall was elected to the Lee’s Summit school board in 2020. She did not reply to requests for comment on Tuesday and Wednesday, but said during her campaign that she intended to serve on the school board and legislature simultaneously.

Donna Peyton, who also ran countywide for the seat that Williams is giving up, told The Star Wednesday that she will resign from the Raytown School District’s governing body next week.

“Our next board meeting is the 12th, so I will submit my formal letter (of resignation) at that time,” she said.

The situation that led to this last-minute court challenge was no surprise and is not some partisan squabble. Williams, Burnett, Miller, Abarca, McGee, Peyton and Marshall all are Democrats. According to county officials, Abarca and the rest were aware of the charter provisions that limit county legislators from holding other public office.

“There were conversations with these folks a long time ago,” Miller said. Those conversation occurred both before and after the election, he said.

“And they’ve chosen to fight it rather than comply…They ran on the idea that they were going to continue to serve in both offices.”

Williams says there is good reason for the charter prohibition because of the inherent conflict of interest. The county sets the real estate property values on which school districts and other taxing entities base their tax levies.

“We collect the taxes and we disburse the money,” she said.

Voters, likewise, are shortchanged when they don’t know whether legislators, in making their decisions, are looking out for the best interests of the county or the school district they also represent, she said.

Abarca did not respond directly to Williams’ criticism, but reiterated that a judge will decide what is and isn’t illegal and then said in a text: “I believe the current legislators’ interpretation to be politically motivated and retaliatory to the results of this past election. It is clearly time for new leadership and old political gamesmanship to end.”

An exception for school boards?

Abarca’s attorneys question whether the county charter’s ban applies to school board members. Yes, the charter states that county legislators must forfeit office if “he or she holds any other federal, state, county, or municipal elective office.”

But the lawsuit cites case law where courts have ruled that school board members are in a separate class.

“A School Board Director is not a Federal, State, County or Municipal office,” the lawsuit claims. They don’t hold office “under the state,” nor are they under the authority of cities. Hence, Abarca and the others need not resign, the lawsuit says.

Abarca said in his written statement that he is confident that a judge will agree with a 1976 Missouri Court of Appeals decision that “supports my ability to maintain both positions.”

The county hasn’t filed its response yet. but Miller, who is an attorney, said the county bases its position on court decisions that differ with that court of appeals interpretation that Abarca mentioned.

“The case law that the county counselor’s office relies on speaks to the case that states basically that a school board is a creature of the state,” he said.

It is not unusual for people to hold two elected offices simultaneously. While serving as an elected member of his city council, the current mayor of Olathe, John Bacon, was for 10 years also an elected member of the Kansas State Board of Education.

It’s unclear how soon a court will make a ruling. The judge assigned to the case set a hearing for March 24 and then recused herself on Tuesday and asked the presiding judge of the 16th Circuit Court to select someone else to hear it. Then on Thursday, the entire bench of the 16th Circuit recused itself, meaning a judge from another county will hear the case.

Also Thursday, the agenda for the next meeting of the legislature was posted online. It includes a request from the county counselor’s office to the legislature for permission to hire the Spencer Fane law firm to represent the county in this litigation at a cost of $25,000. The request will come up for consideration on Monday morning.