by Tracy McCue and James Jordan, Sumner Newscow — Two days after Wellington Mayor Shelley Hansel asked council member Kip Etter to “step down” , there appears to be uncertainty whether her pronouncement was legally binding. In the meantime, Etter has told Sumner Newscow that as far as he is concerned he has or had not resigned from the council.

Kip Etter

Etter also said he will be getting in contact with an attorney to see what his legal actions are.

In the meantime, the city of Wellington is contemplating whether or not to issue a press release advertising the vacancy of the currently open position.

The issue came to a head at the Aug. 2 meeting, when Etter made a statement “I’m resigning” and walked out of the meeting thereafter after the council voted 4-2 to approve Shane Shields as Wellington City Manager pending contract approval.

Shelley Hansel

When Etter returned at the Aug. 16 meeting, Hansel asked for Etter to step down after conferring with city attorney Mike Brown, who said:

“It is my understanding that he resigned at the last meeting. That was his announcement.”

Since then, Sumner Newscow has looked into the legality of whether or not Hansel has the authority to remove a council member or if her request to “step down” is proper.

Upon looking through the City of Wellington bylaws, there is nothing that specifically addresses what constitutes an official resignation. As one local attorney told us, this is something the current Kansas Attorney General office will probably need to address.

Sumner Newscow contacted the AG’s office on Wednesday. We were told:

Because our office provides legal representation to the state and its agencies, we cannot provide counsel, legal advice or research to private citizens, businesses or groups or speculate about specific situations or fact patterns. The city attorney is responsible for providing the city with a legal assessment and advice in any specific case.

 We did look for past examples and came across two ‘dated’ A.G. opinions that are related to this case.

On Feb. 12, 1982, the AG’s office was asked to settle a dispute between the mayor and the city council in Enterprise, Kans. (see full opinion here). In this case, the mayor was trying to remove a council member who had not attended meetings because of health reasons. The council member resigned but the other council members would not accept his resignation.

The A.G.’s opinion at that time issued by Robert Stephan, Attorney General in Kansas stated:

“There is no authority which permits a mayor to take any steps to remove a councilman from office under the circumstances you have presented. We note, however, that the qualified electors of Enterprise may seek recall of the councilman pursuant to K.S.A. 60-1205 if they believe he is failing to fulfill his duties… Finally, we call your attention to the removal of the public officer for willful neglect of duty if such could be proved, although the latter seems inappropriate in this incident.”

Another A.G.’s case, this coming in Nov. 16, 1976 which addressed oral resignations addressed by a public employee in Chetopa, Kans. who stormed out of the meeting saying he quit after a dispute with the council. He later changed his mind. This A.G. opinion states (see full opinion here): 

“Under the common-law theory, and the one which has been adopted in this state, the duties and the responsibilities of a public officer cannot be laid down at his will or pleasure. There must be a resignation with the intention of relinquishing the office and it is not then effective until it has been accepted by the proper authorities or they have done something that is equivalent to an acceptance.”

If this almost 40 year case is still relevant, then Etter is still on the council, because the council did not vote to accept the resignation of the council member.

However, the council did not vote to accept the resignation of B.J. Tracy, who resigned during a work session on May 11, 2015. However, that resignation came with a written note and it was indeed Tracy’s intent to resign.

Don Haider-Markel, professor chair of the Political Science Department at the University of Kansas, said that contacting the office of Derek Schmidt – Kansas Attorney General is probably the best course of action to take.

“That’s an interesting case you have there,” Haider-Markel said when told of the council controversy. “Right now, I would say it is in the hands of the city attorney and the mayor until, perhaps, the attorney general’s office states otherwise.”

Professors at both Kansas State and Wichita State did not render an opinion on the matter.

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In the meantime, Etter is adamant that he did not mean to officially resign.

“If you look at the video, I said ‘I’m resigning.’ I did not state, ‘I resign,’” Etter said. “‘What does that mean?’ I take that as a future action. And, I have the right to change my mind.”

Etter said his issue was about betrayal.

Etter said he felt betrayed by the council because the members had reached a consensus to go through the process at a work session the week before, and then a motion to not do that at the regular meeting was a shock.

He said he did not mean to resign and plans to seek legal advice as to whether the council can essentially kick him out by accepting a resignation he did not intend to give.

He said he was upset and decided to leave before he said something he would regret later.

Mayor Shelley Hansel allowed Etter to speak at the Aug. 16 meeting, and there was a heated discussion between Etter and council member Jim Valentine before she asked him to step down. She said she had spoken with him and she had expected him to get back to her about his intentions, but since he did not get back to her, she was accepting his resignation.

“This is typical fashion for this council, the way they handled this. It is just incompetent leadership and incompetent legal counsel,” he said about being asked to leave the meeting.

Etter was upset they did not follow the agenda at the Aug. 2 meeting he left, and he said they still did not follow the agenda at Tuesday’s meeting.

Etter said he did not feel he had to talk with anyone after leaving the meeting.

He said the “good old boys network was going on. If you want to force me out that way, good luck,” he said at the meeting.

He felt council members had gone behind his back by not doing what they had agreed to do at the work session, and by making a motion when they had agreed earlier to go in a different direction.

“Vince (Wetta) said at the meeting he had talked with Shane and others. Any time I met with anyone at the city level I always let other council members know,” he said. He was also bothered by the implication that Shields was getting to write his own contract, as Wetta had said Shields would be making an offer and the city would negotiate the contract.

“It is just the good old boys network. It is clear that is what it is. Where else in the free world would anyone get to make their own contract?  It’s unheard of. The lack of leadership is unbelievable,” he said.

Etter said he has no issue with Shields being city manager. He said his objection was more the way the whole thing was handled.

He was all for the council itself doing the search for a new city manager, and he wanted to take applications. The other council members wanted to go through the league of municipalities because they felt it would be more efficient. Etter was in agreement with that as well.

During work session meetings when they were discussing whether to go with a third party, Etter said it was good business to go through the process. He felt that was sabataged when the surprise motion was made to hire Shields instead of doing what they had agreed to do.

“They did not think he was strong enough to go through the process, so they just pulled the game they pulled,” he said. “If we had gone through the process, and if he had emerged, then we would have had the peace of mind knowing we did have the best person. There was no job interview, nothing. Where else would you hire someone without at least interviewing anyone?”

Etter called the move a “disservice to the people of Wellington.”

All that led up to Tuesday night’s meeting when Etter arrived just after the meeting had started.

He conceded that he should have handled it differently when he left in haste, but he did not intend to resign, he said.

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