Kircher letter to council

Wednesday, December 28, 2011

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.


Aaron Kircher

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  • Outstanding!!!! (although I think the gazette should proof read for their typo's) Always the researcher and making sure the city is in some way protected as best you can.. Thanks for your service to this community and if you decide to ever run again you have my vote. I for one prefer someone who does the research then those who do not! Again thanks for your time served.

    -- Posted by ruby4 on Wed, Dec 28, 2011, at 10:47 AM
  • Aaron, thank you for your service to McCook.

    -- Posted by dennis on Wed, Dec 28, 2011, at 1:50 PM
  • Or the writter should proof read their typos. I believe documents are printed the way they are received, in most newspapers anyway.

    -- Posted by bntheredunthat on Thu, Dec 29, 2011, at 8:15 AM
  • I respect Aaron for fighting for his position! I agree that there has already been enough time and TAXPAYER money spent on this nonsensical issue. It is time for the council to declare the vacancies as well as fill them! As for the "proofreading"issue... is this the first article you have ever read from the McCook Daily Gazette?? I would challenge you to find an issue that does NOT contain typos or mistakes! Good Luck with that!

    -- Posted by FormerMcCookie on Thu, Dec 29, 2011, at 9:19 AM
  • I don't think it is unfortunate. I think it is called a statute, therefore everyone has to follow it, or when you get caught you deal with the consequences, even the people that do not think they should have to. Having late night parties and being warned numerous times by law enforcement has no place for an elected official and is a disgrace to the community and this is the only action that could have been taken.

    -- Posted by homebuilder on Thu, Dec 29, 2011, at 10:09 PM
  • It is unfortunate in the fact that the first violation of this law everyone speaks so highly of was actually broken when Mr. Hilker was convicted back in the March/April time frame, but not until Mr. Kircher was convicted was it brought to the council's attention that the law existed. However the County Attorney knew all along that the law existed and choose not to do anything about until now. I do not want cast stones at either elected council members this affects but by not saying anything when this happened earlier this year, and opting to throw it at the council when it happened in November really makes me wonder, as should we all what else happens that we the taxpayers know nothing about. Had Mr. Kircher not been convicted Mr. Hilker's conviction would have never been mentioned again. INTERESTING I think.

    -- Posted by ruby4 on Fri, Dec 30, 2011, at 8:43 AM
  • Thank You Aaron for your service. I wonder if our Council will go back to being a "YES" Council without Aaron being there to question things.


    -- Posted by Arkval on Fri, Dec 30, 2011, at 2:41 PM
  • Arkie, I think you are right on target it will now be a total handpicked yes sir council........aren't we proud of our wonderful city.

    -- Posted by ruby4 on Fri, Dec 30, 2011, at 4:12 PM
  • I am proud of our city! That said every city, including McCook, can always improve with a positive attitude.

    -- Posted by dennis on Sun, Jan 1, 2012, at 5:25 PM
  • miss ruby, i haven't seen anyone support the statute. who's been saying how great it is?

    -- Posted by BTWinecleff on Mon, Jan 2, 2012, at 10:21 PM
  • Thank You for your time served Aaron! The city of McCook appreciates it. You have my vote if you want to run for election again!

    -- Posted by youngneighbor on Mon, Jan 2, 2012, at 10:49 PM
  • Aaron and Shane you will always have my vote, if you choose to run again. I appreciate what you both have accomplished by being elected to the council and the difference you both have made.

    -- Posted by ruby4 on Tue, Jan 3, 2012, at 4:34 PM
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