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Councilmen asked for response to forfeiture

Wednesday, December 28, 2011

McCOOK, Nebraska -- McCook City Councilmen Aaron Kircher and Shane Hilker received a letter from city attorney Nate Schneider, just prior to the Christmas weekend, that requested their decision to "acknowledge or not acknowledge" the forfeiture of their offices. The letters were drafted at the direction of the three remaining city council members, Mayor Dennis Berry, Councilman Mike Gonzales and Councilman Jerry Calvin, after their review of a legal opinion obtained from Howard Olsen of Simmons Olsen Law Firm in Scottsbluff, Nebraska.

According to the city manager's report the letters were received by each on Wednesday, Dec. 21, and did not attempt to set a deadline for their response.

"While it was not indicated in the letter, the City Council suggested that the letters be returned in five days," said City Manager Jeff Hancock in his public report.

Hilker accepted his forfeiture of the seat during the Dec. 19 city council meeting and issued a statement then thanking his supporters and family.

Kircher indicated he would reserve his decision until a later date and suggested that a formal letter from the city be the next step. Tuesday morning Kircher issued a formal response that stated he 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."

Kircher added that he had seen nothing in the statutes that would prevent the council from taking this action, "so I believe you could move forward immediately."

Kircher's response, available online at http://www.mccookgazette.com/story/17989..., also offered explanation as to why he thought the expense of a Quo Warranto action was unnecessary and that his response should not be construed as a resignation, which he says is not appropriate for this situation.

"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," said Kircher. Kircher apologized for not being able to give an immediate answer after the conference call with Olsen, but said the 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."

Olsen's analysis of the state statute has placed city councilors in the awkward position of being concerned with losing their elected positions, upon being convicted of any act that requires "punishment by public authority." According to Olsen this would include traffic offenses and raised concerns from councilors that it would also encompass such infractions as zoning ordinance violations.

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