By Alan Montgomery
Special to The Rural Messenger
More than $38,000 in taxpayers’ money has been spent so far on attorney fees in the ongoing legal action being waged by the City of Haven against its township partners in the Haven Community EMS.
Township members of the emergency medical service, after 40 years of productive relations with the city, are just shaking their heads.
“I guess we trusted that everybody was on the up and up,” said Jim Schmidt, a Haven Township trustee. He was one of the local leaders who signed an April 1, 2013, city-township agreement, presented by the city as a “preliminary plan” to seek funding for a new EMS building in Haven.
“We should have had an attorney look it over,” Schmidt said Monday. “I was on the township board for over 30 years. This would have been the first time that we needed an attorney.”
They made a mistake. They trusted that what the city told them was the whole story, he said.
Four years later, Haven City Attorney Larry Bolton, who drafted the 2013 preliminary agreement, said it gave the city full control of the Haven Community EMS and overrode the original, 1977 operating agreement.
“The city’s position is that the April 1, 2013, agreement superseded all arrangements which may or may not have existed before that date,” Bolton said, in early August, in answer to a written query by The Rural Messenger. “The issue of Control will be determined by the outcome of the case now on appeal.”
Law suit fatigue
The legal battle is wearing on the township officials.
“It’s frustrating, the dollars we’ve spent,” said Brian Yutzey, the Yoder Township treasurer. “I keep asking the question, ‘What is broken in that original agreement?’”
The townships of Yoder, Haven and Sumner altogether have spent $27,600 on legal fees so far. Most of that went to their lawyer, Dan Forker, of Hutchinson, in the past two years. Some of the money went to help pay a mediator brought in to try to quell the city-township conflict. That effort failed.
Haven City Clerk Leslie Atherton, in response to a query from the Rural Messenger, said the City of Haven has spent about $10,400 on its legal costs so far. The city reportedly has hired a lawyer from Wichita to help Bolton in the ongoing action against the townships. The fees for that lawyer have not yet been released by the city clerk, despite a request for that information by The Rural Messenger.
At issue is the city’s desire to take control of the Haven Community EMS Service, which has operated for over 40 years under a Nov. 7, 1977, agreement that gave control to the Haven Community EMS Board, made up of representatives from the city and Haven Township.
That agreement was approved by Kansas Attorney General Curt Schneider. In a Dec. 20, 1977, letter to Bolton, the attorney general said this:
“We have reviewed the interlocal agreement between the City of Haven, Kansas, and Haven Township, creating a community ambulance service. The agreement conforms to the requirements of K.S.A. 12-2901 et seq., and we approve it as to form and as compatible with the laws of the State of Kansas.”
The letter bore the names of Attorney General Curt Schneider and of John R. Martin, First Assistant Attorney General.
The 1977 agreement provided for a governing board for the EMS Service consisting of three representatives from the City of Haven and three from the Haven Township. About 20 years later, Sumner and Yoder townships were welcomed into the union. The new board arrangement allowed for four City of Haven representatives, two from Haven Township and one each from Sumner and Yoder Townships, based on population sizes.
Power shift
The City of Haven, through Bolton, now maintains that the April 1, 2013, agreement overrides any prior agreement about control of the ambulance service.
Drafted by Bolton, the 2013 agreement was presented to the EMS township representatives as a “preliminary agreement” in which the parties “hereto agree to the desirability of pursuing funding for a new EMS facility and services…”
That is what the township members thought they were signing. They skimmed the fine print, not worrying about any unexpected provisions.
The agreement went on, saying, “… and whereas, in consideration of the mutual covenants contained herein and other good and valuable consideration, City and Townships agree as follows:”
It then described efforts to seek funding, such as a block grant or bonds, to finance a new EMS building, and that such building would be owned by the city. In Section Three of the document, it started with the words, “Townships will contract for EMS services with the city and by said agreement will pay for EMS services at their current percentage rate…” and that “City will provide EMS services to Townships in the current service areas.”
Boilerplate print
Those words were contained in a page of information that continued onto a second page, covering such routine issues as how property would be divided if the service were disbanded.
Nowhere in that agreement were any words that would terminate the 1977 agreement. At least that was the verdict by Reno County District Court Judge Trish Rose, when the City of Haven asked the court for a summary judgment against the townships, during courtroom arguments in March 2019.
On April 10, 2019, Rose ruled that the city and townships had entered a preliminary agreement in April 2013, to pursue funding for a new EMS building. And they had later agreed, in a December 2016 document, to share the costs of paying back a bond issue to pay for the building. But the agreements did not void the 1977 agreement, the judge said.
“Plaintiff’s motion for summary judgment seeking a declaration that the only documents in force are the 2013 and 2016 agreements is denied,” Rose said. “The 1977 agreement has not been terminated.”
Township trustee Schmidt, who signed the 2013 pact, said the city had said nothing about changing who controlled the EMS service – and he saw nothing in the agreement that would dictate such a change.
It was about seeking money for a new building, he said.
“That was the whole jist of that whole meeting,” he said. “We said, ‘Yes, we’re for moving forward, to investigate the possibility of building that building’ — not to give them control of the whole thing.”
Mike Alfers, who was Haven mayor in 2013, said he knew nothing about any effort or intention, on anyone’s part, to put wording into the April 2013 agreement, that would void the 1977 agreeement — or if such an action occurred, with actual intent. Alfers owns the Rural Messenger.
Dale Kaufman, a retired farmer now on the EMS Board, representing Yoder Township, said he was saddened by the turn of events.
Good faith operation
“In 2013, everybody thought that there was a trusting relationship with the city. No one thought there was anything hidden in there, that they were going to try to take over. It was like, “Oh, here’s another deal to sign.” We had no lawyer hired. We all operated on good faith, for all those years. So why would it change?”
So far, Bolton is the only city official to publicly insist that the 2013 agreement is the linchpin, the key to terminating the 1977 agreement. He said so in a recent statement to the Rural Messenger, and he presented that view in the law suit argued in Reno County District Court in March 2019 – the suit that the city lost.
The city now is engaged in the process of appealing the district court decision to the Kansas Court of Appeals.
There appears to be no record in Haven City Council minutes that the council asked for the 2013 agreement be created, or that it was ever discussed in city council meetings, in open or closed sessions — except for the day it was presented by then-City Administrator Allen Blake, on April 1, 2013.
After Bolton had drafted the document, it had been taken to township trustees for their signatures. It was presented to the city council with those signatures already in place. Councilman Adam Wright “moved to approve the preliminary agreement,” the minutes show. “(Don) Etchison seconded, and the motion passed unanimously.”
And in that action, according to the city attorney’s announcement six years later, they wiped out the 1977 Haven EMS operating agreement.
