County sued over rails to trails petition

Wayne White | Managing Editor

OSAGE CITY—An Osage City man has filed a petition in Osage County District Court in an effort to correct what he says was negligence and improper action by the now deceased county counselor and other county officials. The action pertains to Bissessarnath Ramcharan-Maharajh’s attempt to petition for an election for the purpose of overturning resolutions approved by Osage City Council regarding an ongoing rails-to-trails project.

In the petition for writ of mandamus, filed Sept. 17, Ramcharan-Maharajh requests the court to direct Osage County Clerk Rhonda Beets to “accept, verify and certify the names and addresses provided to her in regard to the proposal of the City of Osage City to construct a pedestrian and bicycle trail.”

The petition states Ramcharan-Maharajh seeks the action “intended to correct a situation that has been brought about by the negligence and improper action by the County Counselor, failure of the County Clerk to perform her function as prescribed by statutes … and the failure of County Commissioners to properly instruct and supervise the county employees.”

Named as respondents are Beets, county commissioners Carl Meyer, Mike Pruitt and Ken Kuykendall, and Delton Gilliland, who was the county counselor up to his death Sept. 29.

In the petition, Ramcharan-Maharajh says the trail project was revived in 2009, and “when it was discovered that the project would cost the taxpayers more than $250,000.00 the citizens wanted to place the matter on a ballot.” He says the city council was approached and granted a period of 60 days for solicitation of signatures in support.

Ramcharan-Maharajh then filed a request for approval of a petition question with Gilliland in September 2009. Gilliland’s rejection of the petition was delivered to Ramcharan-Maharajh in December. Subsequent submittals of revised petition questions were also rejected by Gilliland, but not within the five days state law allows for a county counselor to approve or disapprove of petition questions, Ramcharan-Maharajh says in the writ request.

The court filing indicates that a petition was circulated, but “the County Clerk, on the advice of the County Counselor, stated that she could not accept the names and addresses of the petition signers for verification and certification because the petition itself was not approved or diapproved.”

Ramcharan-Maharajh notes that if Gilliland had misgivings about the matter, state law provided 20 days to file an action in district court challenging the validity of the petition question.

In the writ request, Ramcharan-Maharajh also questions alleged threats by Gilliland to seek attorney’s fees, punitive damages and sanctions if litigation was initiated by Ramcharan-Maharajh.

In an Aug. 24 letter to Ramcharan-Maharajh’s attorney, R.E. Ramcharan, submitted to the court as an exhibit, Gilliland wrote: “Should you file any such action in district court it is my intention that, with the county’s first responsive pleading … you may also expect a motion for allowance of attorney’s fees to be assessed as provided by statute.”

In the same letter, Gilliland wrote: “No valid legal basis appears to which would compel or justify an election on the question presented or based on the documents which you have presented to the county clerk.”

Gilliland also wrote that he had “advised the county clerk that she may return the purported ‘petition’ without further review, examination, or certification.”

In the writ request, Ramcharan-Maharajh questions whether Gilliland violated his constitutional rights by his actions: “Petitioner feels that his attempt to exercise his constitutional right, to seek redress from a governmental unit, has thus far been frustrated by the willful and malicious actions of the County Counselor.”

The court filing indicates four resolutions approved by the Osage City Council were targeted by the petition question: a resolution authorizing the mayor to make application for funds; a resolution that authorized the city manager to enter into an agreement with Kansas Department of Transportation; a resolution to contract for engineering and design services; and a resolution authorizing lease agreements with trail operators.

In its final form, the petition question asked, “Should resolution of the city of Osage City to construct a pedestrian and bicycle trail … at a cost of $1,061,342.00 be effective?”

The court filing also points to the county commissioners’ alleged inaction by not approving a resolution ordering Beets to proceed with verification and certification of the names on the petition.

“Such was a gross failure to perform their duty and it would be appropriate to mete out punishment to fit the neglect,” Ramcharan-Maharajh says in the filing.

Ramcharan-Maharajh filed the petition for writ of mandamus “in forma pauperis,” defined by legal dicitionaries as someone who is without the funds to pursue the normal costs of a lawsuit. He states in the petition that he retained an attorney “using his last $400.00.”

As relief, Ramcharan-Maharajh asks the court to grant a writ of mandamus directing Beets to accept, verify and certify the names on the petition; and grant him reimbursement of attorney’s fees, and punitive damages against each of the respondents for negligence and failure to perform their duties as mandated by law.

Contacted this week, Beets said that since the document was filed, the matter had been turned over to the county’s insurance company, which advised county officials to retain the law firm of Foulston, Siefkin, and Cowan. Commissioners subsequently agreed to retain attorney Wendell Cowan to represent the county in the case.

Friday, Osage County Court Clerk Charna Williams confirmed that a motion to dismiss the court petition had been filed by the county, but the motion was not available for public inspection and had not yet been considered by a judge.