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Marion, Hillsboro accused of violating secrecy laws in atrazine case

Corn growers file complaint under open meetings and records laws

The Cities of Marion and Hillsboro are being taken to task by the Kansas Corn Growers and Grain Sorghum Producers Associations regarding legal action over alleged atrazine pollution.

Executive Director Jere White formally asked Marion County Attorney Susan Robson on Monday to investigate alleged violations of the state’s open records and open meetings laws by the two cities.

The two city councils met jointly in closed session last month to discuss whether to enter into a lawsuit against the manufacturers of atrazine, a herbicide used by corn and grain sorghum farmers.

White asked city officials for copies of any material related to health effects of atrazine that might have been provided to the two councils.

According to a news release from the associations, White made a formal request to Larry Paine, city administrator of Hillsboro.

White claims Paine did not respond to the request but did respond to an earlier, informal request by saying that the documents had been reviewed in closed session and therefore were protected by attorney-client privilege.

According to White, a City of Marion official denied that any such documents even existed.

“Although one city official denied the existence of documents, and another denied us access, these documents were provided to the local media,” White said. “You can’t pick and choose. You can’t deny one person the documents and then give them to someone else.”

Reporters were not allowed to attend the closed session. After the meeting, a reporter for the Hillsboro Star-Journal was contacted by Paine.

In an interview, Paine gave the reporter copy of two PowerPoint presentations. The presentations dealt mainly with the law firm conducting the atrazine case but did include this list of “potential health effects of atrazine”:

  • Decreased semen quality
  • Prostate cancer
  • Non-Hodgkins lymphoma
  • Breast cancer
  • Ovarian cancer
  • Tumors
  • Stomach cancer
  • Estrous cycle alteration
  • Reduction in ovarian weight
  • Follicle-stimulating hormone and luteinizing hormone disruption.

At an ensuing Marion City Council meeting, the issue was discussed, and the council decided to follow Hillsboro’s lead and join in the lawsuit. At the time of the initial closed meeting, the City of Marion was not a client of the lawfirm directing the suit.

No copies of documents were given to a Marion County Record reporter afterward.

Before White’s allegations were filed, a local reader asked the Record and the Star-Journal, both of which are published by Hoch Publishing Co. Inc., whether the newspapers had received documents pertaining to the atrazine lawsuit.

The reader was told the newspaper had received material from the City of Hillsboro. He then asked for and was allowed to make copies of the documents, which the newspapers believed were public records because they had been given to the press for dissemination.

It is not known whether other documents related to the lawsuit might exist but have not been revealed to the public or the press.

In his discussions with Hillsboro officials, White said he also requested a copy of the contract that the City of Hillsboro entered into with the law firm. He said he received no response to his request. The Record and Star-Journal also will be requesting copies.

Not only is White objecting to not receiving documents. In his letter to Robson, he also challenged whether the Kansas open meetings law allowed two separate councils to meet together in closed session for purposes other than negotiating with each other.

Contacted Tuesday afternoon, Robson verified that she had received the associations’ allegations but had not had a chance to review them.

“Usually I read through it and see if there’s any merit,” Robson said. “I also seek other people’s opinions.”

When her review is completed, she said, she will respond to White.

“I have only had three of these in my eight-year career as county attorney,” Robson said.

White is adamant the two cities violated the state’s anti-secrecy laws.

“I’ve served in local government myself and I understand how important it is to follow the open records and open meetings laws,” White said. “We have tried to do things properly by making formal requests for information to the cities.

“When we were denied or ignored, we talked to the Kansas attorney general’s office, which recommended asking the Marion County attorney to investigate the matter.”

The associations became involved after the two cities agreed to join in a lawsuit, led by a Dallas, Texas law firm, against the makers of atrazine.

Both towns’ water systems have less than the allowable three parts per billion of atrazine in drinking water, White said.

White, who has been involved in EPA’s review of atrazine since 1995, said he had not heard of any substantiated research to back claims of atrazine problems. He alleges that city officials were told atrazine is dangerous at levels lower than those allowed by EPA.

“Basically, you’ve got trial attorneys looking to make some money by convincing people their drinking water is unsafe,” White said. “EPA sets stringent standards for safe drinking water and the water that is provided to the people of Marion and Hillsboro is well within those standards.

“Instead of taking the word of these Texas trial attorneys, the city councils should have consulted with Kansas Department of Health and Environment or EPA.”

Asked to respond Tuesday to the allegations, Hillsboro officials said Paine was out of the office until Monday and not available for comment.

Marion City Administrator David Mayfield initially referred inquiries to attorney Cary McDougal of Baron & Budd, the lawfirm that solicited the cities for the action.

McDougal was reached Tuesday afternoon and initially agreed to provide additional information. However, there was no response to numerous attempts to follow up on the contact.

After reading details of White’s allegations, Mayfield then referred inquiries to attorney Dan Baldwin, who represents both cities as city attorney. However, Baldwin was not available for comment.

Hillsboro Mayor Delores Dalke was contacted and referred questions to Baldwin. Marion Mayor Mary Olson was not available for comment.

Last modified April 15, 2009

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