McCook City Councilman Aaron Kircher delivered the following letter to city officials on Tuesday:
December 27, 2011
To: Nate Schneider, City Attorney
J. Jeff Hancock, City Manager
Jerry Calvin, City Council Member
Mike Gonzales, City Council Member
Dennis Berry, Mayor
In response to the letter dated December 21, 2011 regarding forfeiture of the office of City Council Member, it is my understanding based on the advice provided by Simmons Olsen Law Firm, P.C., in a document dated December 14, 2011 and provided to the city, that my office and Shane Hilker's office have been forfeited according to Nebraska Revised Statutes 19-613 and 32-560 upon the date of our respective convictions.
It is also my understanding that the three remaining council members took the formal action to make it the policy of the City of McCook to interpret the aforementioned statutes according to the recommendation provided in that attorney's recommendation. It is also my understanding that the council took formal action authorizing the City Attorney to provide a letter to myself and Shane Hilker to give notice that the offices have been vacated due to forfeiture
in order to proceed with filling the vacancies. Please respond if any of the aforementioned statements are incorrect in any way, before your next regular meeting on January 3, 2012 since I want to be sure we are all on the same page.
In light of the Council's decision to proceed in this matter strictly according to the recommendation of the opinion offered by Simmons Olsen Law Finn, I would expect the City to immediately declare and give notice of the vacancies as soon as possible so that the business of the people of McCook can move forward without further delay. I have seen nothing in the statutes that would prevent the council from taking this action so I believe you could move forward immediately. I understand there are some concerns about whether the city needs to file a Quo Warranto action based on the discussion at the last meeting. In fact, a Quo Warranto action is only for unlawfully holding or exercising public office, which I am not, so that should not slow up the city in any way. I know this is not the format you were seeking but I believe this matter requires more thorough consideration than a "check yes or no" response as requested in your letter. Any further questions can be asked of me during the agenda item for filling the vacancies so they can all be addressed in public at the meeting.
This should not be construed as a resignation since a resignation is not appropriate for this situation according to Nebraska Revised Statute 32-560. A resignation has a different requirement for determining a vacancy than forfeiture according to Nebraska Revised Statute 32-562. Furthermore, it would only add one more element for a statutory dispute and make things even more complicated which the city does not need. It would actually cause more problems than it solves in a matter which has an abundance of uncertain legal issues surrounding it, so that is the reason that I'm affirming that this is not a resignation.
Given the fact that any council member could be subject to this same situation before the Legislature resolves this issue, I do not want to set the precedent that the city has to acquire an "acknowledgment of forfeiture" before declaring a vacancy when the statutes don't require the council to obtain such an acknowledgment. I am simply responding so that the council can move forward since there seems to be a lot of confusion about how to proceed. I believe the city should follow the statutes and declare a vacancy when a vacancy exists, fill any vacant office according to the law and move forward with the business of the community.
I apologize for not being able to give an immediate answer after the conference call with the attorney at the last council meeting but this situation certainly required careful consideration before coming to a decision. I have decided that you need to take the necessary steps to ensure that the vacant seats are properly filled as soon as possible I have enjoyed serving the people of McCook and I believe everyone agrees that it's unfortunate that elected officials can be removed in this way but the city needs to be able to function and carry on the business of the community.