Re: Subject: Joint written opinion — Interlocal Cooperation Act and Service Contract No. 2019-01

Subject: Re: Joint written opinion — Interlocal Cooperation Act and Service Contract No. 2019-01

Mayor Duncan:

Thank you for the written response.

I accept that you will not direct a joint City–County opinion and that you cannot bind the County Counselor. I also accept the citations: Jayhawk Racing Properties, LLC v. City of Topeka, 313 Kan. 149 (2021), and City of Olathe v. City of Spring Hill, 316 Kan. 64 (2022). Those cases distinguish governmental policy from proprietary obligation. They do not authorize spending a special-purpose tax off the ballot.

The question I put to you is narrower than whether the interlocal and Contract No. 2019-01 exist on paper. It is whether half-cent money may pay grants, contributions, sponsorships, scholarships, meals, and banquet tables the 2014 ballot did not name. K.S.A. 12-187(g) put the purpose on the ballot. AG Opinion 2001-014 and AG Opinion 2017-015 — the second written to this City on this tax — confine that money to the use the voters approved. Continuing to perform under a contract does not enlarge the purpose.

You write that an independent state-level review would be more useful than an opinion from the two governments whose position I dispute. I agree. Formal Attorney General opinions are requested by elected officials and governmental agencies. You are Mayor. Commissioner Cook sits on JEDO and on the GO Topeka board. Councilmember Hiller holds a JEDO vote. Any one of you can send the question this week.

I ask you, in writing, to request a formal Attorney General opinion on these points:

1. Whether an NAACP banquet, a church dinner, a YWCA awards table, or a like civic sponsorship is economic development payable from the Shawnee County half-cent retailers’ sales tax under K.S.A. 12-187(g), the 2014 ballot, the interlocal, and AG Opinions 2001-014 and 2017-015.
2. Whether JEDO’s approval of a lump budget line titled grants/sponsor/contrib/scholar authorizes those payees if they are not specified.
3. Whether Contract No. 2019-01’s automatic renewal is a governmental policy choice that a later JEDO board may terminate on the notice the contract already provides.

If you will not request that opinion, please say so in one sentence so the record is clear which elected official declined the review you recommended.

The KORA request for the twenty-five-year spending record remains pending. Policy review of “how funds are allocated” is useful. It is not a substitute for the purpose clause.

Henry McClure
MCRE, LLC
3625 SW 29th Street #100
Topeka, KS 66614
785-383-9994
mcre13@gmail.com

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From: Spencer Duncan <sduncan@topeka.org>
Sent: Friday, September 25, 2026 1:43 PM
To: Henry McClure <mcre13@gmail.com>; Karen A. Hiller <khiller@topeka.org>; Kevin Cook <kevin.cook@snco.us>; City Clerk <cclerk@topeka.org>; countyclerk@snco.us <countyclerk@snco.us>; MCRE Media <mcre1.9999@blogger.com>
Subject: Re: Subject: Joint written opinion — Interlocal Cooperation Act and Service Contract No. 2019-01

Henry -

You have asked me to confirm that the City Attorney and County Counselor have been directed to prepare one joint written legal opinion and provide a date by which it will be issued. I cannot provide that confirmation because I am not requesting a joint opinion at this time.

The City of Topeka and Shawnee County are separate governmental bodies, each represented by its own legal counsel. Although our interests can align and we cooperate through JEDO and other interlocal arrangements, the City Attorney represents the City and the County Counselor represents the County. Traditionally, the two offices independently evaluate the legal rights, responsibilities and interests of their respective clients rather than issuing a single joint legal opinion. I also cannot direct the County Counselor or commit the County to a particular legal process or deadline.

The City’s position is that the interlocal agreement and Service Contract No. 2019-01 are lawful under Kansas law. The City would not continue operating under these agreements and authorizing activity pursuant to them if it believed they were invalid. The fact that the City continues to perform under the agreements reflects its present legal and institutional position that it has authority to do so. That position does not require the City to commission a new legal opinion in response to every disagreement concerning the arrangement. 

That legal position is separate from the policy question of whether portions of the arrangement should be reevaluated. I have previously indicated it may be appropriate to review aspects of these longstanding agreements, including how funds are allocated, the terms governing future expenditures and renewals, and GO Topeka’s administration and use of the funds it receives. A willingness to conduct that policy and performance review should not be interpreted as an acknowledgment that the existing agreements are unlawful.

I have reviewed the cases you cited. The Kansas Supreme Court citation for Jayhawk Racing Properties, LLC v. City of Topeka is 313 Kan. 149, 484 P.3d 250 (2021). Both that case and City of Olathe v. City of Spring Hill, 316 Kan. 64, 512 P.3d 723 (2022), distinguish governmental or legislative policy decisions from administrative or proprietary obligations. They establish that one governing body generally cannot use its legislative authority to bind future governing bodies to governmental policy choices. They do not establish a blanket rule that every continuing municipal contract, payment obligation or interlocal agreement is invalid. Application of that distinction depends on the particular agreement, the governing statutes, the nature of the action and the specific obligation being examined.

Similarly, K.S.A. 12-2904 establishes requirements for interlocal agreements, including their contents and applicable approval process. K.S.A. 12-2904a addresses the powers and duration of separate legal entities created through such agreements. K.S.A. 10-1101 defines the municipalities governed by the municipal cash-basis law, while K.S.A. 10-1119 provides that contracts or instruments of indebtedness violating that act are void. The applicability of those provisions cannot be determined solely by citing them; it requires analysis of the agreement, the relevant funding mechanism, the nature of each obligation and the funds legally available for payment.

Your prior emails suggest another opinion from the City or County reaching a conclusion different from yours may not resolve your concerns. If you believe the City and County and their respective attorneys have incorrectly interpreted Kansas law, an independent state-level review would be more useful than requesting a joint opinion from the same two governments whose legal position you dispute.

I suggest submitting your legal arguments to the Kansas Attorney General and request review or ask an eligible elected official or governmental agency to seek a formal Attorney General opinion. The Attorney General’s Office states prepares opinions in response to requests from elected officials and governmental agencies. Information about that process and previously issued opinions is available on the Attorney General’s opinion page. This would provide independent, third-party guidance for the City, County and public regarding the questions you have raised.

While I am not requesting a joint written opinion or issuance, I will continue to support appropriate review of the underlying agreements, funding allocations and performance expectations.

Have a good weekend,

Spencer

Spencer L. Duncan

Mayor, City of Topeka

785-207-8985

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From: Henry McClure <mcre13@gmail.com>
Sent: Tuesday, September 22, 2026 6:46 PM
To: Karen A. Hiller <khiller@topeka.org>; Kevin Cook <kevin.cook@snco.us>; Spencer Duncan <sduncan@topeka.org>; City Clerk <cclerk@topeka.org>; countyclerk@snco.us <countyclerk@snco.us>; MCRE Media <mcre1.9999@blogger.com>
Subject: Subject: Joint written opinion — Interlocal Cooperation Act and Service Contract No. 2019-01

 

Notice: -----This message was sent by an external sender-----

Mayor Duncan and Commissioner Cook:

I have already stated my position on Service Contract No. 2019-01. This message is not a restatement of that demand. It is a request for the legal process that has to come next.

The half-cent, the interlocal, and the services contract are not a City file, a County file, or a JEDO file. They are one arrangement created by two governments under Kansas law. I am asking that the City Attorney and the County Counselor produce one joint written opinion on that arrangement.

The statutes that opinion should apply are:

• K.S.A. 12-2901 et seq. (Interlocal Cooperation Act), including 12-2904 and 12-2904a
• K.S.A. 12-187(g) and 12-192 (purpose of a countywide retailers’ sales tax)
• K.S.A. 10-1101 and 10-1119, as they apply to the City and the County as the municipalities that levy and transfer the tax
• The successor-governing-body rule stated in City of Olathe v. City of Spring Hill, 316 Kan. 64 (2022), and Jayhawk Racing Properties v. City of Topeka, 313 Kan. 415 (2021)

The first question is simple: what authority does each body still have, and what does the law require before any further draws or renewals under 2019-01.

I am not asking either of you to argue the merits in this email. I am asking you to send this to both counsel and to tell me, in writing, that a joint opinion has been requested and when it will be issued.

Please copy both clerks so the request is on the public record.

Respectfully,

Henry McClure
MCRE, LLC
3625 SW 29th Street #100
Topeka, KS 66614
785-383-9994
mcre13@gmail.com