The big question:

By Carolyn Reid

As of October 13, 2023, all interlocal agreements between the city and the county were not only declared to be formally ended, but the prospect of  litigation was introduced to the city not long after for alleged non-payment of services..

How did the county and the city get to this point? The following is a timeline of events leading up to this point. All the following communications occurred in 2023.

Friday, July 7: Judge/Executive David Fields contacted Mayor Sebastian Ernst, city council, and City Clerk Susan Bishop, with a cc to County Attorney Stacey Sanning to ask “what the City’s intentions are for the different joint services that the County and City have shared. I have heard rumors but not received any official notification on whether or not the City will continue participating in the joint agreements…Planning and Zoning, Code Enforcement, and Animal Control.” He indicated he needed to know so the county could make any necessary changes on its side. The judge also asked about the fire agreement that, he understood, would be prepared by the City attorney. 

Tuesday, July 11: The judge replied to his own email to remind city officials “per the Interlocal Agreement Section 2.0, there is to be a 90-day notice of separation.” He concludes with a request to the city to advise of their intent. 

Wednesday, July 12: Councilperson Amy Hurst responded, “What is the status of the contract?” The judge replied, “It is my understanding that the county attorney and city attorney have talked, and the county attorney will be preparing the amendment to the interlocal agreement now.”

Friday, July 28, 2:13 p.m.: The judge once again contacted all city officials, the county and city attorney, and the fiscal court, repeating he had had no official communication regarding the interlocal agreements, and he had sent the email to the city requesting that information July 7. This time, he attached copies of the agreements for review, and he stated the city’s amounts for each agreement: Code Enforcement, $15,000 with an automatic renewal with a 90-day written notice of termination; Planning and Zoning, $12,000 with an automatic renewal and a 30-day written notice of termination, and Animal Control, $5,000 with automatic renewal five years from September 27, 2017, but with one month written notification of termination.  He continued, “A written mutual letter should have been done last year but will note that the animal control agreement was thought to have been an automatic renewal just like the others.” He continued to explain the agreements have “always worked for the betterment of both governmental entities because of eliminating the doubling of personnel and office space.”

He also stated in the email that at the fiscal court meeting 7/25/23, he updated the magistrates the city had not communicated its intentions. At that point, he said, the magistrate requested a joint meeting with the Falmouth city council and the mayor “to discuss these agreements so that we can get thing in order as we move forward.” He proposed a meeting on Wednesday, August 2 at the courthouse. He asked for all parties to email separately, and he would notify the Outlook of the meeting details. He concluded, “Also, in this meeting, we can go over the Fire Agreement the County Attorney has prepared.”

July 28, 2:32:35 p.m. City Attorney Brandon Voelker replied, “Counsel for Planning and Zoning (Tim Theissen) was pulling together the work performed in Falmouth for review; we have not received this information yet. Any assistance would be greatly appreciated.” He also stated he understood Butler is not called on to pay their percentage of the planning and zoning agreement “...due to the lack of work being performed.”

July 28, 2:49 p.m. Hurst replied she would work to make a meeting of the fiscal court and the city council.

July 28, 2:55 p.m. Voelker replied the Interlocal Agreements are in violation of KRS 83A.130 which lays out the mayor-council plan. “The executive authority of the city shall be vested in and exercised by the mayor.” He argued the interlocal agreement terms were unenforceable due to the fact the “executive authority of the city shall be vested in and exercised by the mayor.” He continued by saying the mayor is also responsible for supervising all city officers, including animal control and code enforcement, meaning the council has no say in the matter because the two duties are executive functions overseen by the mayor. 

He continued “the budget did not provide for the expenditure” of planning and zoning, and the city had been answering questions. “My discussion with P and Z counsel was to develop a fee schedule to ensure applications may be processed and considered by Planning and Zoning, with applicants paying associated costs, not subsidized by the City. This is similar to most arrangements in neighboring counties.

“As to Code Enforcement and animal control, it is my understanding that the mayor is not in agreement to utilize code enforcement and animal control from the County, which would be his right pursuant to KRS 83A.130.”

July 28, 4:25 p.m. Fields replied he had not interpreted KRS 83A.130 the same way, and he attached the text of the law so the city and county officials could view it for themselves.

July 28, 5:12 p.m. County Attorney Sanning replied to all to state she found “it very interesting that the mayor and more importantly the Kentucky League of Cities is taking the position that a mayor of a city government is not bound by an interlocal agreement.” She stated she would contact the League and the Kentucky Association of Counties about the question.

July 31, 12:54 p.m. Mayor Ernst asked why Falmouth was not receiving sheriff’s protection, saying “the safety and well-being of our citizens is far more important than P&Z. Falmouth PD is still backing up the sheriff’s department on county calls; we were doing this even when we were paying the county for additional patrols. We have never billed the county for this service.” He asked why the city was not notified of “this new policy targeting our citizens”? He continued by asking what services the county offer to Falmouth and why Falmouth is paying county taxes if they are being refused. He cited the 14th Amendment as a protection against this kind of governmental behavior. Ernst also included a photo of the dispatch white board that stated as of June 8, 2023, the deputies would not respond to Falmouth for non-emergency calls, and emergencies only when a Falmouth officer is not available. 

July 31, 9 a.m. Sanning emailed Voelker regarding interlocal fire and other agreements.

We will be discussing this at a special called fiscal court meeting tomorrow (Tuesday, August 1). 

She told Voelker she wanted to clarify the city’s position with this email.

“With regard to the fire agreement, the mayor’s position is that he is not bound by the resolution passed by the city council at the joint meeting in May, but regardless the mayor WILL honor the agreement; however, he won’t sign the current agreement unless we remove the annual renew ability provision because he believes that was not part of what was agreed upon at the May meeting.

“With regard to the code enforcement and animal control agreements, the mayor’s position is that, even though his predecessor mayor entered into these agreements with the county which are annually renewable and have a 90-day cancellation provision, the mayo believes, based upon your legal advice, that the agreements are legally unenforceable so that he can unilaterally decide not to comply with them, thus no cancellation is going to be given and no payments will be made by the city to the county, either. Is this a correct assessment of what you told me Friday?”

July 31, 9:31:50 a.m. Voelker replied, “We will provide notice, but P and Z has clearly told residents they are not providing any services. All requests have been sent to the City, so it would not appropriate for the city to pay for services not rendered. I was trying to work with P and Z’s counsel to come up with solutions going forward. As to Code and Animal control, both situations apply since no services are being rendered. 

Regarding fire, it is my understanding the mayor will execute, provided the agreement spells out that it was for July 1, 2023-June 30, 2024, which was what was agreed to and is consistent with the city’s budgeting process. Should the county need additional time to provide on their own, I would recommend March/April next year, that the judge/executive and mayor meet to discuss. The issue that has arisen is the negotiating of executive functions with the legislative branch.”

He explained he copied the mayor so he could advise of any other changes regarding the fire agreement.  “He can also confirm the cessation of services to the city and/or that services were not being provided.”

July 31, 10:56 a.m. Sanning replied to Voelker and Ernst to thank Voelker for the clarification, stating she did not believe the county had any intent to bill the city for services not rendered by the county. She said the concern was making sure “all the legal t’s and i’s are crossed and dotted.” She said she would inform the judge and the court at the meeting the next night. 

July 31, 12:20 p.m. Ernst replied, “Notice was never given by the city to terminate P&Z, animal control or code enforcement agreements. Given that the county unilaterally decided to stop providing these services without giving notice to the City of Falmouth, it is my understanding that the county violated the agreements we had in place by doing so. Because of this decision by the county, we will not able to honor any payment plans set forth in these agreements. We will be providing notices of termination soon, very soon.

July 31, 1:39 p.m. Fields sent an email at the request of the fiscal court for a joint meeting to discuss the Interlocal Agreements, and he suggested “each governmental entity notify their respective attorneys with available dates” if a meeting was desired. 

July 31, 1:41 p.m. Councilperson Joyce Carson emailed, “We need to help pay P&Z.”

July 31, 1:51 p.m. Mayor Sebastian Ernst replied to Carson, “We do help pay for P&Z. We pay county taxes.”

July 31, 5:59 p.m. Sanning notified Voelker via text that the fire agreement was being amended to make it renewable for 30 days and cancellable by either party with 30 days’ notice; she stated it would be approved the next day.

August 14. A letter from Planning and Zoning Administrator Brett Price to the judge attested the PC Planning and Zoning Department “has not adopted policy to turn away citizens of the City of Falmouth from department services. We continue to serve the public through general inquiries about the city’s zoning ordinance, permit review, plat approval, comprehensive planning, addressing and more. 

“The Planning and Zoning Department does refer citizens to reach out to other City of Falmouth officials regarding subjects like flood permitting, encroachments, and utilities. These are outside our current scope of work in the Planning and Zoning Department.”

September 7. A letter from County Attorney Sanning to Mayor Sebastian notified the city was currently in default of the three local agreements of planning and zoning, code enforcement, and animal control because the county had not received any notice from the city terminating the agreements. “Despite the assertion made in your email of July 31, 2023, and statements made by you publicly, the county has not, and did not, ‘unilaterally cease to provide services’ to the city of Falmouth. In fact, the Planning and Zoning Administrator and the Animal Control officer have continued to provide services to the city throughout the last 60 days, which can easily be proven through both dispatch records and through the individuals who have utilized the services. The code enforcement officer has been unable to provide services to you since June 30, 2023, when an employee of the city demanded all of the city files and ticket books be handed over to the city. It has also not escaped the county’s attention that the city has apparently hired its own code enforcement officer, which could also be interpreted as an anticipatory breach of the interlocal agreement.”

Sanning went on to say Theissen, the planning and zoning attorney, stated the city could cancel the planning and zoning agreement, but “the current amount of $12,000 is much lower than the 20 percent of total costs which is currently the rate set by the Planning and Zoning Commission.” She continued by explaining the city would still owe the county money for planning and zoning under the agreement.

Before concluding the letter, Sanning referred to statements made by the mayor in council meetings and in emails. Those statements reflected the mayor’s belief the “county has a duty to enforce the city ordinances without remuneration since city residents also pay a county tax.” She explained the interlocal agreements are the only means provided to enforce the city ordinances due to jurisdiction restrictions found in KRS 67.083(7)b. She also stated it is not fair to make the county pay for the ordinances that apply only to the city “and which provide the other citizens of the county no benefit.”

She concluded the fiscal court would terminate the agreements and “may seek legal recourse to recover the amounts due to the county for actual work performed by county employees under these contracts” if the accounts were not made current.

September 27, 2:14 p.m. Voelker stated he had been waiting for planning and zoning to get back with work performed and proposed fees the city should charge. Sanning stated that did not explain code enforcement or animal control, and Voelker replied the “code officer was not following contract of direction from the mayor.” Sanning reminded him the city and county currently had contracts and the city was in breach. She said that was not grounds for not paying; that was grounds for terminating, and the city did not terminate.

Voelker replied the contracts exceed the term of office, to which she replied that was not a legitimate argument, and based on that argument, the mayor can breach a contract at any time.

Voelker cited case law, saying the issue is governmental versus proprietary. After some back and forth, Sanning said, “If the answer is we aren’t paying, then as far as I’m concerned, you are in breach. I’m all for sitting down and negotiating, but you all have to come there in good faith. If the answer is we don’t have to honor contracts because we are a new mayor and we aren’t paying, then there’s nothing to negotiate.

When Voelker stated he understood no services were being provided, Sanning corrected him saying both animal control and planning and zoning were providing services. She further stated she had seen the animal control officer picking up an animal within city limits just a few days before. She offered to get dispatch records to prove animal control was working, and she reminded him planning and zoning’s Brett Price had attended a city council meeting the month before and brought proof of his services to the city.

October 12, 1:54 p.m. Voelker sent all city parties and Sanning showing the agreement regarding animal control had expired as of September 27, 2022, and he indicated Ernst had advised any animal control was being handled by the police department and code enforcement. He stated, “I am unsure of the basis that the county continues to assert that Falmouth owes money for animal control. I have never received, nor has the city been able to produce “mutual written agreement” to extend.”

He explained he copied Sanning in order to show the police have statutory authority to “charge and/or any person assigned enforcement responsibility by the mayor.” 

His last line indicated council could vote to amend the budget and fund the service, but “it would be funding for enforcement by the mayor as the Executive Officer of the City, similar enforcement of code and other violations.”

October 12, 2 p.m. Voelker sent an email to Sanning with a copy to all city council saying he could find no approval by the Department of Local Government for the agreements for code enforcement, planning and zoning, and animal control. He asked for those approvals to be provided, and he stated he did not believe any of the agreements were approved by the DLG as required by law.

October 13, 12:55 p.m. Voelker emailed Sanning to state he wanted “to confirm that we are in agreement that Falmouth and the county are in agreement that the zoning administrator contract has been terminated by the mayor of Falmouth. While PC Planning and Zoning Commission may believe that the [Joint Planning Unit] requires Falmouth have this agreement with the county, that is not the position of Falmouth.” He closed by asking for confirmation.

Sanning replied that was her understanding, and the considered the email a “writing terminating per the agreement.”

October 17, 1:21 p.m. Voelker emailed Sanning to request documentation from the animal control officer  of citations issued, “whether civil or criminal, asserting a violation of Falmouth ordinance,” as well as “any other documentation between the animal control officer and the City of Falmouth regarding enforcement.” He continued by saying he needed the documents to investigate if any enforcement was performed in Falmouth since the September 27, 2022 end to the formal agreement, and if he “acted in Falmouth without proper appointment by the mayor,” making it a question of whether the officer had authority to act in the city. He further stated if the action taken by the animal control officer within the city was due to a violation of the county ordinance, he was protected; however, if he was enforcing a city ordinance, he was not appointed to do so. 

He also clarified the police would be appointed with pick up animals in the city if in violation of the city ordinances, and they would contact animal control to transport to the animal shelter. He also stated they would use the county’s licensing requirements in order to identify stray animals as long as the owners are in compliance with the law.

Voelker sent this email in order to address possible claims of unjust enrichment, which, according to Cornell Law, occurs when “Party A confers a benefit upon Party B without Party A receiving the proper restitution required by law.” This was in response to possible litigation from the county upon the city to pay for services rendered.

October 18, 12:13 p.m. Sanning replied the number of records for animal control could render the five-day timetable for records impossible, to which Voelker replied that was not a problem on his end.

October 23, 10:04 a.m. Voelker requested all documentation of zoning services that Brett Price  performed for Falmouth “during all times set forth in the recent press release issued by you.” (The statement was printed in the October 24 edition.) He also requested all CAD reports, citations, and other documentation for the time period set forth in that release—July 1 through October 13 when services for this fiscal year were ended by the court. Voelker also requested “amounts paid out by the county for costs associated and/or approved by the PC Planning and Zoning Commission for the past 12 months…”

Voelker indicated council and the press ask why his emails have gone without response. 

October 23, 11:06 a.m. Sanning responded that she would take more than five days to respond to the request due to multiple records being requested from multiple sources. She further replied she did not issue a press release; the statement was from the court as to why  they were moving forward; she had only approved the communication. She also asserted he “knew good and well” she had responded to each and every email he had sent, quite often by phone or text. She stated she had waited nearly three weeks for a response by him, and he had stated he had been unwell—a text that was released to the Outlook as part of the open records request. Her third point was that she had offered via a phone call on October 13 that if the city would make an offer, even half of what was owed, she would request the fiscal court to accept rather than go into litigation. She stated the city has not made an offer for the three months they had been communicating, attempting to avoid litigation. 

October 23, 11:11 a.m. Sanning requested records of all communications between the city, whether through the mayor or the council members from September 22, 2022 to the present regarding the duties and/or responsibilities of the county code enforcement officer, planning and zoning administrator, and animal control. She requested financial and requests for action by those officers in which the city was the focus.

October 23, 12:07 p.m. Councilperson Sabrina Hazen asked both attorneys and Judge Fields if the documents made in the open records requests had been provided. She also made known her disappointment that a statement was released to the paper that contained “statements that contradict previous correspondence from the fiscal court” rather than “responding to the emails of [the city] attorney in a good faith attempt to resolve these disputes.” She then asked when to expect the documents from animal control and planning and zoning.

In the middle of all the discussions between the city and the county, Voelker was also consulting Planning and Zoning’s Attorney Tim Theissen regarding the planning and zoning agreement. 

July 17, 3:10 p.m. Theissen stated he was resending an email he had sent previously that contained a copy of the Joint Planning Agreement and a copy of the statute. He explained since the beginning of 2008, the fee schedule had remained with the county paying 75 percent of the fees, and the City of Falmouth paid 20 percent for its costs. Butler was also included as paying five percent. He also committed to asking Price to look into the records to “identify the percentage of services they render for Falmouth-related properties.” 

October 13, 12:16 p.m. Voelker emailed Theissen to say he had gone over the agreements extensively. He stated they had not received information from Price, but he understood Theissen would be at the city council meeting the following Tuesday. He also said the mayor as the executive authority has directed the p&z should be handled in-house, and” if a zoning administrator request should be received by the commission, please ask that it be forwarded to the Falmouth City Clerk’s office for response.”

Multiple calls between Sanning and Voelker are on record, as well, regarding the interlocal agreement issue. These range from June 27, three days before the expiration of all agreements, to September 25.

Recreation is also involved

October 2, 12:47 p.m. Another question arose about Pendleton Recreation when the City of Falmouth was notified by the PC Recreation Commission that “the new recreation agreement was passed and approved between Pendleton County Schools and Pendleton County Fiscal Court on 6/12/2023. This agreement no longer includes the City of Falmouth.

With the new agreement, the articles of incorporation were amended at the state level as to who has representation on the recreation board. The City of Falmouth no longer has appointees on the recreation board. If the city wishes to re-enter the agreement, those discussions may be open with the fiscal court and the school. Thank you for your support for almost 25 years. It’s unfortunate the current council and mayor could not come to an agreement to continue to support the youth programs.”

October 3, 8:15 a.m. Hazen asked out a [Special Purpose Governmental Entity] could “take out one of the government entities that created them.” She stated she went on the Secretary of State site and saw it is now a board made up of three people picked by the court, three by the school board, and three by the recreation committee. She asked them if that would “make them a public-private partnership.” 

Voelker contacted Sanning to say he was unsure the city was removed and if the “applicable KRS was complied with.”