McCOOK, Nebraska -- Howard Olsen of Simmons Olsen Law Firm told the McCook City Council that two City Council seats were forfeit at the time of the presiding councilors' convictions in county court.
The opinion, from the Scottsbluff, Nebraska, firm, came Monday evening during the council's semi-monthly meeting at Council Chambers.
Olsen was hired to provide an unbiased legal opinion on the potential forfeiture of seats occupied by Councilmen Shane Hilker and Aaron Kircher.
The scenario stems from Hilker being convicted in May of harboring a potentially vicious dog and Kircher being convicted in November of disturbing the peace.
The situation raised the possibility of a multitude of legal expenses for the city, ranging from disputes of council actions to the cost of a special election. The special vote may be necessary to fill the vacated seats because a required notice of vacancy wasn't filed within 10 days of the forfeitures.
Ultimately, Coucilman Hilker accepted the implied forfeiture of his council seat and read a prepared statement thanking his family and supporters at the close of the meeting. In the statement, Hilker said that while he personally didn't agree with the law, he understood he was still subject to it. Hilker said he hoped his time on the council had helped change perceptions about youth and show that one person can make a difference in a short time.
Mayor Dennis Berry voiced concerns about legal scenarios in which one of the vacated seats were filled, then the courts ruled the forfeiture of the seats to be unconstitutional.
Olsen replied by saying that the city would have to give consideration to that, and that a constitutional challenge would take some time. Olsen said that he supposed there could be argument that the statute wasn't constitutional, but the city's responsibility was to protect its citizens and to do things legally, to the best of its abilities and at a minimum cost.
Councilman Kircher raised several questions about the implied forfeitures, at one point asking Olsen if there was anything preventing the council members from being reappointed to their forfeited seats.
Olsen replied that that was a very good question and said he thought there was a similar scenario years back, that coincidentally he believed occurred in McCook.
Olsen said that in that scenario the councilman who was elected, had received some sort of a misdemeanor before he took office. Olsen said that they pled him out very quickly before he took the seat to avoid conflict with the statute.
Kircher explained that reappointing himself and Hilker to the vacated seats could avoid future conflict created by appointing someone else to the seats, as well as avoiding leaving the seats vacated while it was decided in the court system, citing the potential for an increased length of time due to appeals.
Schneider replied that he didn't believe there was anything legally that would prevent their reappointment to the seats but said he would have a concern with the appearance of the move and "how that would be taken, by whomever."
Councilman Kircher told the Gazette after the meeting that he couldn't comment on any acknowledgment or denial of a forfeiture at this time, but confirmed the lack of support for the reappointment. "Every indication I've had is that Shane and I being (re)appointed to our seats is not something a majority of the council is willing to do. Even though, legally, it affords the city the best protection, since all decisions from an appointment onward would not be able to be challenged, regardless of any court decision on the validity of the statute," said Kircher.
Kircher said he believed it would also be the quickest way to fill the seats with two people who were actually elected for those terms.
A citizen in attendance at the meeting asked Berry how the city was going to operate when any traffic ticket could remove a council member from office. Councilman Hilker added that, at this point, any police officer had the ability to remove any council member at will, with Berry replying "if you're convicted."
Kircher added that it would include even violations as broad as zoning regulations, with Berry again repeating, "if convicted."
The same citizen inquired as to who brought the scenario to the forefront, saying "We don't know who brought this up and why."
Schneider replied to the man several times that it was statutory in nature and eventually responded to repeated questions by saying that it really didn't matter. The citizen argued, "Yes it does. It matters to me. I want to know who put this thing in an uproar."
Councilman Calvin echoed Schneider's reply that it didn't matter who the person was who originally brought the matter to the city attorney's attention, the importance was focusing on resolution.
Olsen said it would be unwise for the council to take any action until after it is determined whether the two council members would refuse to vacate their office and suggested offering a five-day period for the councilors to make a decision.
If confirmation is received that Kircher will dispute the forfeiture, the city will ask County Attorney Paul Wood to pursue the legal removal of Kircher from office through District Court.
Olsen said that legislative history was no help because it only went back to 1971 and the statute dated back to the 1920s. "We are stuck with the plain language of that statute, that talks about crime and then the plain language of crimes," said Olsen.
Other items on the consent and regular agenda:
* A claim for damages against the city from Vicky Drake, Robert Edwards and Tamara McAdams was received and instructed to be submitted to the City's insurance carrier for review and appropriate action. The claim cites $1,000 to $1,500 in damage to personal property at 1401 1/2 W. Third Street, that was caused by 8 to 10 inches of black waste water that their plumber believes to be a result of a negative water flow from a city line. No discussion took place pertaining to the claim and it was approved as part of the consent agenda.
* Councilors discussed the annual renewal of current McCook retail liquor license holders, during which Councilman Gonzales and Councilman Calvin inquired about disturbances at Sports Night Club occurring at a higher rate than at the other liquor retailers. It was ultimately decided to approve the automatic renewal for all current area liquor license holders, including Sports.
* The agreement with Miller & Associates Consulting Engineers for the design of the failed 16" transmission main and water treatment plant waste stream lagoon facility, were approved. Both projects were approved previously for the current budget and will utilize the State Revolving Fund program, which allows for an 80 percent loan and a 20 percent grant.
* MO Dough LLC was granted a special liquor license to serve alcohol at the Nebraska Farmers & Ranchers Convention at the Chief Motel on Jan. 27 and 28.