KENTON COUNTY FISCAL COURT

M I N U T E S

February 8, 2005, 9:00 a.m.

The regular meeting of the Kenton County Fiscal Court was called to order at the Independence Courthouse.  Present at the meeting were Judge Executive Ralph A. Drees; Commissioners Dan Humpert, Barbara Black and Adam Koenig; Deputy Judge Executive Scott Kimmich; County Attorney Garry Edmondson; County Treasurer Ivan Frye; Human Resources Director Joe Shriver; Emergency Management Director Ed Burk; County Police Chief Bill Dorsey; Jailer Terry Carl; Public Works Director Joe Murphy; Assistant County Attorney Brandon Voelker; Special Project Manager Ralph Bailey; Court Reporter Cathy Johnston; and Guests.

Invocation and Pledge of Allegiance

The invocation was given and pledge of allegiance led by Commissioner Adam Koenig.

Approval of Minutes

Judge Dress asked for approval of the minutes for the last meeting.  Commissioner Black said there was one item she wished to correct on the minutes and moved for approval with a second from Commissioner Humpert who said he had also given some changes to the deputy judge.  The minutes were unanimously approved with the vote of aye.

Delegations

District Six Department of Highways recommendations for the 2005-06 rural secondary program, Chief District Engineer Tom Schomaker reporting:  Mr. Schomaker introduced the branch managers for traffic and operations, Bill Madden and Rob Hans, and the maintenance engineer for Kenton County, Matt Arlinghaus, who had accompanied him to the meeting.  He said the estimated allotment for Kenton County for this fiscal year is $379,200.  From this amount is set aside for routine maintenance and traffic activities on 53.7 miles of roadway, $176,200 which translates into a per mile cost of approximately $3,283 per mile.  The county administrative expenses is also set aside in an amount of $3,862 which leaves a balance for the program of $199,138.  It is proposed in the coming year to do the following:  (1) Resurface a portion of Visalia Road from Staffordsburg Road to KY 177 for 2.863 miles at an estimated cost of $114,520.  This road was last resurfaced in 1998 and it has an estimated average daily traffic of over 1,600 vehicles per day; and (2) Resurface a portion of Hempfling Road, KY 3072, from KY 17 to 1.25 miles east of Trace Run Bridge, approximately 2.25 miles and the estimated cost is $90,000.  These amounts are over the allotment that is available by approximately $5,400.  The allotments are estimated and it is hoped that they will increase enough that this amount can also be covered.

A couple of more items are on the list but there is not enough money in the allotment to complete and that is another section of Hempfling Road and Oak Island Road.  If other money becomes available, these roads would be next on the priority list.  The court is being asked for concurrence or, if the court has different recommendations, to take them under consideration.

Judge Drees asked what the county judge's expense was that was listed on the handout.  Mr. Schoemaker said the county judge expense was the amount that is given to each county for their portion of administering the rural secondary program and every county gets the same amount.  It is essentially paid to the court for any kind of travel that is involved with the rural secondary program and other types of activities.  Judge Drees said it looked as if this was a waste for Kentucky to be doing this and asked if this could be changed.  Mr. Schoemaker said if there were other recommendations the judge would like considered, they would be submitted along with theirs.

Mr. Schoemaker said there was a series of roads that were scheduled for resurfacing last year that did not get done.  Judge Drees asked the deputy judge and the commissioners if they had questions.

Commissioner Humpert said the two roads definitely needed work and that Visalia Road had recently been taken out of the six-year plan, and he would like to urge that 536 from Boone to Campbell County be put back into the six-year plan for major reconditioning and reworking.  Mr. Schoemaker said he did not know that it had been removed but he did know that there was not any money available for it.

Deputy Judge Kimmich said they were in the plan but not funded.  Commissioner Humpert asked if there was any way to change it to funded because this would be a great time while $114,000 was being spent to redo a portion of 536.  Mr. Schoemaker said this was something the legislature would have to do.

Judge Drees asked for a motion and Commissioner Humpert made the motion to accept the recommendations; seconded by Commissioner Koenig.  The motion was accepted by the unanimous vote of aye.

Mr. Schoemaker requested that a copy of the minutes be sent to his office so they could be submitted along with their recommendations.

General Business

There was not any general business to be brought before the court.

Resolutions

RESOLUTION NO. 05-02-Authorize the County Judge Executive to execute a maintenance agreement with the Commonwealth of Kentucky related to a cast-in-place retaining wall on Kyles Lane, Scott Kimmich reporting:  The state is requesting that upon completion of this project the county take responsibility for the ongoing maintenance of the wall of this area of roadway that will be replaced.  Since we are building this project based on the state's specifications, no significant problems are anticipated and ask that this agreement be approved so we can begin working with the utility providers in the relocation of utilities on the project.  It will also be asked that time be granted to extend the bid on the project for a short period of time while the details are finalized.

Commissioner Humpert asked if Kyles Lane was designated as a county road.  Mr. Kimmich said that it was a state road and we were being sued on it because it has slipped and repairs have to be made.  The state said they have reviewed and approved our plans, but before we can get an encroachment permit on the right-of-way, we have to agree to accept the maintenance of the wall long term.

Commissioner Black asked what the future maintenance costs are estimated to be for the retaining wall.  Mr. Kimmich answered that properly designed, the wall should stay in place for many years and Judge Drees also said that no problem was anticipated and asked for a motion.

Commissioner Black made the motion; seconded by Commissioner Koenig.  The motion unanimously passed with a roll call vote.

Ordinances

ORDINANCE NO. 924.25-First reading of a proposed text amendment to the Kenton County zoning ordinance, Scott Kimmich reporting:  It was discussed at the last meeting as to whether or not this would be taken up as a principally permitted use or conditional use or not permitted at all.  If there is a desire to have it looked at as a conditional use with requirements and developmental conditions placed upon it, the appropriate course of action is to send it back to the planning commission.  For purposes of clearing the record, we need to dispose of the recommendation that was before the court to approve and send it back to the planning commission to be considered as a conditional use in some areas of an IP zone.

Commissioner Humpert said there were a number of developmental controls that were articulated at the last meeting, so between developmental controls and conditional use, it changes the intent of this legislation enough that we send it back and have it rewritten.

Attorney Edmondson said the discussion at the last meeting was about imposing certain developmental controls that would apply to this type of use and also to put in conditional use language.  If this is taken back to the planning commission, they will have additional hearings and input and staff considerations and come back with a recommendation along those lines.

Commissioner Koenig said he wished to clarify that what he said at the last meeting was that he was willing to discuss conditional use.

Commissioner Humpert said that he thought right now the action would be to turn this particular application down and see what the planning commission brings with respect to developmental controls and conditional use back to the court.

Commissioner Black said she was of the opinion that the court would rather see this come to a vote of an appropriate use in an IP zone and she was not in favor of approving this as a permitted use in the zone.  Before the court proceeds with sending anything back to the planning commission and have it considered as a conditional use, she made the motion to disapprove biodiesel as a permitted use in an IP zone and see what happens, and then we will know if we should proceed with sending it back to the planning commission to be considered for conditional uses or not.

Judge Drees confirmed she was making the motion to turn this down as a principally permitted use in the IP zone; seconded by Commissioner Koenig.  Commissioner Humpert asked if this was turning down the use of biodiesel anywhere in Kenton County and Judge Drees answered yes.

Commissioner Black said she was proposing that this not be included as part of the text amendment for permitted use in an IP zone.  Judge Drees asked for a roll call vote whereupon the motion was unanimously approved.

Mr. Edmondson said this could only begin with the legislative body which is the fiscal court or the planning commission and they are not likely to do this.  Commissioner Humpert said he would like for the county planning commission to reconsider this with additional developmental controls and use, and he would like to make this motion.  Judge Drees seconded the motion.

Commissioner Koenig said that after thinking about this he could not see putting something with pollutants in the air into these IP zones.  From his understanding and what he had been able to discern from searching the internet, you could not have a biodiesel plant without sending pollutants in the air.  He said that he was not sure there could be enough controls for this use.

Judge Drees said this was energy that had to be worried about now and in the future.  He also said that personally he did not think this should be excluded and he thought it should be allowed with the necessary controls.

Commissioner Humpert said that what they were saying was that biodiesel should be allowed somewhere in Kenton County and not necessarily this site and it would be appropriate with conditional use.  There should be a site in Kenton County where we could have biodiesel.  Judge Drees said that he agreed.

Commissioner Black said while going back over the application again, particularly over the court minutes of a prior meeting paying particular attention to the questions concerning the amount of discharge byproducts, it kept coming back that it only takes five pounds of pressure for the vents to open and vent into the air part of what is going to be a byproduct.  Five pounds of pressure is not very much and this could frequently occur.  Going back over the minutes and looking at some of the percentages, there is concern that this is part of the reasoning based on the record of why the text should be changed at all.

Judge Drees said he still thought this should be an allowed conditional use and Commissioner Humpert said one of the developmental uses talked about was filters and putting charcoal filters on the vents that would attempt to control the pollution.  Commissioner Koenig asked if it would eliminate it and Commissioner Humpert said he did not know but he assumed this was to eliminate as much as possible.

Judge Drees said there was a motion on the floor for this ordinance to be resubmitted to the Kenton County Planning Commission to be looked at for putting the proper control use on biodiesel and allowing this as a conditional use.  Judge Drees asked for a roll call vote that produced the following results:  Commissioner Black voted no; Commissioner Koenig voted no; Commissioner Humpert voted yes; and Judge Drees voted yes.  Judge Drees said this was a tie vote so the motion died on the floor.

ORDINANCE NO. 950.83-Second reading amending the Kenton County Code of Ordinances adopting the one-stop shop as the official means by which the county will provide for building inspections and codes enforcement as provided in levels one and two, Scott Kimmich reporting:  This puts the county in place with the planning commission to handle the codes enforcement and building permits bringing about greater efficiency in the way the program is administered.  Also, this will put the county in a situation where developers will no longer be coming in and will all be handled by one entity.

Commissioner Black made the motion for approval with a second by Commissioner Humpert and the motion was unanimously approved following a roll call vote.

ORDINANCE NO. 950.84-Second reading of an ordinance making the 2003 International Property Maintenance Code a part of the permanent record of Kenton County, and adopting the provisions thereof by reference thereto with certain amendments and revisions thereof, Garry Edmondson reporting:  This is an adoption of this code and any subsequent revisions thereto as part of the countywide building code.  This covers such items as windows falling out, hanging down gutters, etc.

Commissioner Black asked if these sort of things would be included in what was done in the one-stop shop in the second tier of services and Mr. Edmondson answered yes.

Commissioner Humpert made the motion for approval; seconded by Commissioner Black and the motion was unanimously approved on roll call.

Consent Agenda

CLAIMS LIST-County Treasurer Ivan Frye:  Since there were not any questions pertaining to the claims list, Judge Drees said warrants would be issued and the claims paid.

Deputy Judge Kimmich said he wished to report to the commissioners that the sale of the 501 building did take place last week and Judge Drees did attend.  Somewhere along the way they decided to electronically transfer the cash to the county that would have reduced the closing by $18.00.  Judge Drees promptly advised them that the offices were close and he would be happy to stop and pick up the check and they delivered the check to him so the county got this money back.

Executive Orders

EXECUTIVE ORDER NO. 05-08-Appointment of hearing officer for sexually oriented businesses appeals hearing:  Judge Drees announced that he would nominate for the court's approval Edward L. Smith.

Attorney Edmondson said this is a requirement of the ordinance that there be an independent hearing officer.  After a license inspector makes the decision and there is an administrative appeal, this individual needs to be independent of the person who made the original decision.  Mr. Smith is a lawyer and has experience with administrative matters so he will do a good job.

Judge Drees entertained the motion for approval made by Commissioner Koenig; seconded by Commissioner Black.  The motion was unanimously approved following roll call.

EXECUTIVE ORDER NO. 05-11-Retirement of Wayne Wallace as police officer for the police department:  Commissioner Humpert moved for approval with a second by Commissioner Koenig and the motion unanimously passed with the vote of aye.

Chief Dorsey came forward to say Detective Wallace was perhaps one of the finest detectives that he had ever been around with the innate ability to get people to talk to him about things with which they would normally remain silent.  If you look at the investigations in Kenton County for the past five years, he has been a part of those.  Because of a training accident, he is not able to continue as a hazardous service police officer.  He will be missed because he was a good officer and representative of the agency.

EXECUTIVE ORDER NO. 05-12-Resignation of Scott Loeschel as police officer for the police department:  Commissioner Black made the motion with a second by Commissioner Koenig.  The motion was unanimously approved with an aye vote.

EXECUTIVE ORDER NO. 05-13-Termination of Charles Walker and Brian Wharton as seasonal maintenance for Public Works:  Commissioner Koenig made the motion for approval; seconded by Commissioner Black.  The motion unanimously passed with the aye vote.

EXECUTIVE ORDER NO. 05-14-Termination of Gary Fender as animal control officer for the Police Department:  Commissioner Koenig moved for approval with a second from Commissioner Black and the approval unanimously carried with the vote of aye.

Judge Drees asked if Wayne Wallace and Gary Fender would be replaced and Mr. Kimmich said no and that they were in negotiations with the Judge regarding Scott Loeschel's position.

Citizens Address

The mayors and other citizens present did not wish to address the court since the biodiesel issue was now a moot point.

Administrative Reporting

DEPUTY JUDGE EXECUTIVE-Scott Kimmich:  The Kyles Lane project has dragged on for a long time and we are recommending that we accept the recommendation of CDS Engineers to approve the awarding of the bid to Fred A. Nemann Company in the amount of $353,273 to enable us to begin negotiating the final terms of the contract and to work with the utility providers in the relocation of utilities to get the project moving.  The bids are higher than anyone anticipated and we are working with the insurance carriers to negotiate this.  The county has been awarded $100,000 in state funding to proceed and any further delay will complicate the issue.  The geotechnical and state engineering reports are in hand and the city of Ft. Wright would like to see this issue resolved.  We are asking the court to let us award the bid and finalize the contract for the judge's signature.

Commissioner Humpert moved for approval with a second from Commissioner Black.  Commissioner Black asked the amount of the bid and Mr. Kimmich answered $353,273.  She also asked if the $100,000 was under the emergency section of the maintenance code.  Mr. Kimmich said when the settlement was negotiated the county was anticipating spending $100,000 on this project and we were trying to get out of spending the money.  The court went to the state and asked for the money to help pay for it and this would have covered the county's cost of the project but bids came in much higher than anticipated.  Kenton County still has to put up the money through the insurance carrier but the state's $100,000 is there and allows the county to keep the project moving.  The insurance carriers had made commitments of funding and they will be asked to increase the funding based on the participation by the Commonwealth to participate as well.  Commissioner Black asked how much more would be asked from the insurance carrier and Mr. Kimmich answered their maximum was about $100,000.

Commissioner Humpert asked if the additional expense was the retaining wall and Mr. Kimmich said yes, and that it had to be constructed about three feet taller than initially called for in the recommendation of Mr. Estes.

Commissioner Black asked if the insurance companies were offering to pay 50 percent of the original amount.  Mr. Edmondson said that initially the county anticipated the cost was going to be a total of $150,000.  Under this law, the county has two insurance companies.  There was at the point when this all started, an insurance company that was insuring the county through the planning commission.  Between the self-insured fund and the insurance company was going to cover one half and the other one half was going to be paid for by the engineer, Dave Estes.  That was the original estimate of what the cost was going to be but the bids came back tripled of what was anticipated.  Commissioner Black said this means that we were looking at about $75,000 from the two insurances and the state is now kicking in $100,000 and we have $353,000 left, but since the agreement was already reached and signed, is there any hope of getting additional money.  Mr. Edmondson said the two attorneys that represent those entities are talking to their carriers but we do not yet know the amount of their contributions.  Commissioner Black then asked if there was any legal responsibility on their part to provide more.  Mr. Edmondson answered there was an agreement that we do this and get it done and there was not a specific amount in the agreement.  There was no amount mentioned but everybody knew what it was when it was discussed in open court.  Now, we need to go back and say we were wrong and there is a legal argument that says we made that agreement based upon these representations.  We would have to go to court and get a release on this and nobody knows because we have not tested those waters.

Mr. Kimmich said we would rather go to court and have the judge require them to put up more money than to go back and try to litigate the case.  Mr. Edmondson said it would cost more if it is litigated because it will be a trial that will take two to three weeks and it would be an expensive proposition.

Commissioner Black asked where the $253,000 would come from.  Mr. Kimmich said the contract would be contingent upon the county's ability to negotiate a settlement with the other insurance carrier.  It would be best to get the bid accepted at this rate and negotiate the contract and construction will not be started until there is an actual agreement that shows the actual dollar amounts.

Commissioner Koenig asked if there would be additional complexities if the bid was not now awarded and Judge Drees said this project had been lingering for a long time and it was time to get it done.

The motion was unanimously approved following roll call.

COUNTY TREASURER-Ivan Frye:  Asked that the record reflect that the commissioners and the court have been provided with a copy of the monthly report for January and if there are any questions, please call the treasurer's office.

HUMAN RESOURCES DIRECTOR-Joe Shriver:  Nothing further to report.

COUNTY ATTORNEY'S REPORT-Garry Edmondson:  Nothing to report.

Commissioners' Reports

COMMISSIONER BARBARA BLACK-Said she had attended a judge executives' meeting last week and one of the largest issues for all of the counties in the state was jails and the state's unwillingness to pay for their inmates from the time they are actually taken to jail until they are sentenced.  The other issue was the state's unwillingness to pay for time served when a judge determines that an inmate of the state has been in the facility for the proper amount of time and does not grant the county any money for the prisoner's served time.  These are not county prisoners but state inmates and this translates into millions of dollars for the people of Kenton County.  The pressure on the county's budget is getting to be unbearable and it is time for the counties to take a stand.

Jefferson County intends to file a lawsuit against the state to try to recover the money due them from the state for incarcerating prisoners.  She further said that she thought Kenton County should join in this lawsuit, and with two counties fighting together they may have a better chance of winning.  After all, this is a state law and the counties should be reimbursed for the incarceration of prisoners and medical conditions that occur.

Normally, if someone breaks state laws, they have to suffer the consequences but this has been going on for years and years and the contention is that if this is a state law and someone is breaking the law, they should be held accountable.  The state is getting a free service every year and it seems the only option is to get a judge to determine if we are to get reimbursed as the law states.  This is only going to get worse and it is costing the taxpayers millions of dollars and putting a huge strain on our budget.  It is my suggestion that we join in the lawsuit with Jefferson County to try to recoup some of our costs.  There should be discussion for Kenton County to join this lawsuit to get a judge to determine and resolve this issue in order for us to be reimbursed by the state.

COMMISSIONER DAN HUMPERT-Said he had talked to the jailer about the same issue and the county should be reimbursed the $1,000,000 per year for the prisoners incarceration.  He said he would also argue that we need to join the lawsuit or give the county attorney the ability to look into it to see if the county should initiate its own lawsuit or join with Jefferson County to get the reimbursement from the state.  Commissioner Humpert said he would make the motion.

Judge Drees suggested the county let Jefferson County start the suit and if they did not do this, the county could go ahead and do something.

Commissioner Black said she would like to make the point that Kenton County has stood alone before in a lawsuit, and if another county had joined in she felt it would have made a difference in the outcome.

Judge Drees said he also thought the county should pay their share, but since it is now taxpayers' money paying the bill, they would still have to pay their share so this is not a free ride.  If Jefferson County does not file a suit within a month or two, the county could move ahead.

Commissioner Humpert said he would like to change his motion from entering into the lawsuit to intervening.  Commissioner Black said that she would be okay with the intervening but it speaks a lot more strongly if we enter into and actually file the lawsuit.  Commissioner Black seconded the motion and it was unanimously approved following roll call.

Commissioner Humpert said he and Commissioner Koenig were at the legislative caucus at NKU and he was particularly pleased to see the turnout of citizens speaking in favor of a legislative remedy for the TANK payroll tax.  He also said he had talked with some of the city council and commissioners and they told him they could not support a tax increase.  It is very disconcerting that there is still more education needed on the issue showing that it is an actual tax decrease.  A five-year refund will cost the county somewhere between 10 and 12 million dollars.  Citizens approved the payroll tax to pay for transportation and it is being challenged by saying we need to lower it and cut it which would cut transportation and we would have to refund it.  Citizens would be paying payroll taxes into Kenton County for transportation services and we would be refunding those payroll taxes back to citizens who are saying they want to pay the taxes for transportation services.  Instead of getting transportation services, citizens in the county would be getting refunds and TANK would be the loser.  For some reason, the citizens are not getting this message but they cannot have refunds and transportation services at the same time and this needs to be made clear.

COMMISSIONER ADAM KOENIG-Agreed with Commissioner Humpert's statement of the caucus meeting since a lot of citizens and officials were present speaking on behalf of TANK and its need in the community.

He said he had received an e-mail from an irate constituent regarding potential tax increases and his message was to cut the budget.  A lot of things were described to him that had been cut back over the past few years.  He was wondering if the county had the numbers on personnel that had been cut and if some of the department heads would have this information.

Judge Drees said he had mentioned to the deputy judge that he had read in a business courier that the county had hired more people in 2003 and 2004 and we don't think this is correct, but we also do not know how they do their report.  The number of part-time and seasonal personnel could really skewer the report and we need to get to the bottom of this.  The county has actually not refilled positions that have been vacated and we will make this information available.  There have been a number of things done to cut back on personnel and this is a savings for the county and it was a surprise to see this article.

Mr. Kimmich said the only area where there is a net increase in the amount of county employees is in the opening of the restricted custody center for inmates on the fifth floor of the county building.  Commissioner Humpert said the dog authority has also been taken over by the county.

Mr. Frye said there were 451 W-2 forms processed in 2004 and this year we had exactly the same number.  Commissioner Black said the numbers in the report were obviously wrong since the jail employees and the dog authority had been added and we kept the number of W-2's the same.

Judge-Executive's Report

Nothing further to report.

Executive Session

No executive session was called.

Adjournment

Since there was not any further business to come before the court, Commissioner Humpert made the motion to adjourn with Commissioner Black's second.  The motion was unanimously approved following the aye vote.