photo by: Mike Yoder

When Douglas County officials say the county jail “legally must be expanded,” they don’t actually mean there has been any legal finding that a jail expansion is required, county commissioners acknowledged Tuesday.

A statement in a county-produced informational brochure about the upcoming sales tax election has drawn attention for its unequivocal nature. A brochure titled “Ballot Initiative Handout” includes a sentence that says: “Legally, a jail expansion must occur — the question is how it is financed.” The brochure is being used as part of an informational campaign conducted by the county in advance of a countywide vote for a half-cent sales tax that would help fund a $44 million jail expansion and about $11 million of mental health care initiatives.

However, when questioned on Monday and Tuesday, county commissioners were unable to point to a legal finding to back up the claim. Instead, commissioners said it was their opinion that the county could face legal jeopardy if the jail is not expanded.

“Do we have a lawsuit pending that forces us to expand? No,” Douglas County Commission Chair Nancy Thellman said. “Do we want to get to that place? No.”

But opponents of the sales tax say the county’s wording in the brochure — and at other times on the campaign trail — misleads some voters into thinking that an outside entity — be it a judge or a regulatory agency — has ruled that the county must expand the jail.

“It implies there is some sort of legal authority that has ordered them to do this,” said Patrick Wilbur, an organizer of the Jail No campaign. “That’s not true. The county is in complete control of this.”

County Commissioner Mike Gaughan acknowledged on Tuesday that the sentence saying the jail “legally must be expanded” could have been worded more clearly, but he thinks county commissioners have more accurately described the situation as they have been talking with constituents.

“All I can say is there is a better way of saying it, and we have been saying it that better way,” Gaughan said.

The statement in the brochure was unclear on what law would require the county to expand the jail. When questioned by the Journal-World, Thellman said there were several statutes in play. One frequently cited by county commissioners is Kansas Statute 19-1919. That law — which dates to 1868 — is brief. It reads: “All prisoners shall be treated with humanity, and in a manner which promotes their reform. Juveniles shall be kept in quarters separate from adult criminals. The visits of parents and friends shall at all reasonable times be permitted.”

County officials acknowledged that no court or regulatory agency has issued a ruling or an order stating that the county is out of compliance with that law or others related to jail standards. The county also has not received any warning letter or other formal notice from a regulatory agency stating the jail is in jeopardy of being ruled out of compliance with the law.

The statute provides no definition of what constitutes humane treatment or efforts to promote the reform of inmates.

It also was unclear what legal research the county had conducted on the issue. The county counselor has not been asked to issue a written opinion about the jail’s compliance with the law, Thellman said.

“We didn’t seek a legal determination of whether we are being forced to do the right thing, or whether we simply are doing the right thing before we are forced to do so,” Thellman said.

Governments, at times, do find themselves under order to take an action to remain in compliance with a law. The current school finance law in Kansas is an example. The Legislature has been ordered by the Kansas Supreme Court to make changes to the school finance law to bring it into compliance with the Kansas Constitution.

County officials acknowledged the jail issue faces no such order, currently.

“But we don’t want to get to that point, either,” Gaughan said.

Opponents of the sales tax, though, said the county is exaggerating the risk that the jail could be found out of compliance in the future. Benet Magnuson, executive director of Kansas Appleseed and a leader of the Jail No campaign, said such enforcement action against a jail is rare, and he believes there are several jails in Kansas at greater risk of such action than the Douglas County Jail.

“There is just no interpretation of these statutes that says you have to expand the jail,” Magnuson said.