(Updated Monday, 12:30 a.m. with correction below) by Tracy McCue, Sumner Newscow — Whatever has gone on thus far in the ongoing saga between Kip Etter and the Wellington City Council, there might not be a bigger day for this dispute than Tuesday.

That will be the day the Wellington City Council will reconvene. It also could be the day Sumner County District Judge Scott McQuin determines whether of not Etter’s injunction and application for restraining order he submitted to civil court Friday will be granted. A source has told Sumner Newscow, that McQuin is expected to take up the matter in civil suit on Tuesday at 1:30 p.m.

Mike Brown

The council is scheduled to meet for its regular council meeting on Tuesday at 6:30 p.m. On the agenda, the council members are to discuss a Sept 1 memo sent to them by Wellington City Attorney Michael Brown.

Brown is asking the council to act upon Etter’s alleged verbal resignation at the Aug. 2 meeting. Brown said the council should decide whether to accept, reject or take no action on a Etter resignation. If the council decides to reject or take no action, Etter will remain on the council. If the council accepts his resignation, then Etter is no longer on the council.

Kip Etter

So far, the council has taken no action. On August 16, Mayor Shelley Hansel had asked Etter to step down. However, no vote had been taken at that meeting.

In the memo, which was released in this week’s city council agenda packet, Brown wrote a two-page, nine-paragraph prose outlining the details of the case and what he has found legally since the Aug. 16 meeting.

Brown states:

“Not only have I discussed this matter with the legal staff with the League of Kansas Municipalities and other city attorneys whom I know, I have also researched the Kansas Statutes, Case Law and Attorney General Opinions. Attorney General Opinion no. 76-346 dated Nov. 16, 1976 discusses oral resignations. It notes that a resignation of a public officer need not be in any particular form, unless some form is prescribed by statute. Kansas statute do not require a written form of resignation. ‘Ordinarily, it may be either in writing or by parole.’”

Brown would go on to say:

“In this situation we have council member Etter announcing his resignation at a regularly scheduled council meeting which was captured by the television crew who was recording the meeting and has been broadcasted several times on Channel 55.”

Brown said the case also stated that acceptance is necessary to perfect the resignation of the public officer which has not been made.

Brown also listed another case Attorney General Opinion no. 82-35 dated Feb. 12, 1987 that stated the case of a resignation of a public officer, the resignation is not complete until the proper authority, the Wellington City Council, accepts the resignation. Until this is done, there is not a vacancy.”

Brown said he then contacted Athena Andaya, Deputy Attorney General in charge of Legal Opinions and Government Council Division. Brown said Andaya told him that she sees no reason why she would deviate from the previous two opinions.

On August 16, Etter came to the council meeting late and said he did not resign. Hansel solicited the advice of Brown who said he indeed had resigned. But, again with no council vote, this question could not be answered by Andaya.

“There is no attorney general opinion about the effect of an oral withdraw of an oral resignation prior to acceptance by a council,” Brown said.

Etter’s injunction.

What happens at the council meeting Tuesday may be predicated on what happens in court earlier in the day.

Friday, Etter had submitted a petition in Sumner County Civil Court for a “temporary and permanent injunction” as well as an “application for restraining order,” against Hansel and the five other council members. If granted it would halt the process of accepting his resignation or to continue the vacancy process, (see story here).

The council had started the vacancy process by advertising it on August 22 in a press release sent to various local media outlets.

It is unclear, how this will work if McQuin grants Etter’s request. The courthouse was not open when Sumner Newscow learned that such a hearing was scheduled to take place Tuesday.

The petition is a 14-page document that was submitted by Wichita Attorney Ryan M. Peck. In the petition, Peck submitted a 75-point prose on reasons why such an injunction and restraining order needed to be granted by the court.

The petition described the Aug. 2 meeting in which Council member Vince Wetta made a motion to hire Shane Shields as the permanent city manager. It was seconded, and passed by a 4-2 vote.

“The minutes reflect that Mr. Etter left the room at 7:35 p.m. prior to the conclusion of the meeting,” the petition read.

The petition would go on to state.

“Mr. Etter was frustrated and felt attacked in the manner that the Motion was made, and felt based on his experience that the Motion had been made through behind-the-scenes dealings. Etter also felt the motion was contrary of action that had been previously agreed upon by the Council…”

Peck wrote in the petition that Etter had wished to avoid saying something in anger that he would later regret (for reasons why he left) and that it was caught on audio equipment saying “I’m resigning.” Peck then wrote.

“Mr. Etter’s statement, ‘I’m resigning’ was not made to the city council nor to any particular city council member, nor was it made to any person in particular. It was a private comment made in the haste under Mr. Etter’s breath… In fact, no one, including the remaining City Council members, was even aware of the statement until a local news crew analyzed the audio footage subsequent to the Aug. 2, 2016 meeting.”

Then there were the minutes of the Aug. 2, 2016 City Council meeting, accepted by the council on Aug. 16.

“There was no mention of Mr. Etter’s alleged ‘resignation,” Peck wrote in the petition. “In fact, the only mention of Mr. Etter in those minutes is that he left the room prior to the adjournment of the meeting.”

Conflicting reports

Perhaps, the biggest conflicting reports between Brown’s memo and the Etter court petition thereafter, described the events that occurred immediately after the Aug. 2 incident.

Brown wrote:

“Council member Kip Etter announced his resignation by stating, ‘I am resigning.’ He then got up and walked out of the council meeting. It is my understanding that he told several people out in the hallway that he had just resigned. Furthermore, the following week he did not attend a scheduled work session. No advanced notice of his inability to attend the meeting was given.”

Several sources to Sumner Newscow have confirmed that Etter did speak to a group of people who were gathered in the hallway of the council chambers. The Etter petition did not mention this alleged hallway conversation in the injunction petition.

Brown would go on to write:

“I have also learned that after the Aug. 2 meeting, Mayor Hansel, council member Jan Korte and City Manager Shane Shields visited with Mr. Etter about this matter. I was not privy to those conversations but it is my understanding that at no time during these meetings did he inform them that he was withdrawing his resignation.”

Shields said at the Aug. 16 meeting: “I have had no contact with him since the last week and no indication regarding his position.”

Hansel stated on the night of Aug. 16 meeting:

I will let it be known publicly that Mr. Etter said he would resign and left the meeting early. I called him and offered the opportunity to allow him to sleep on it in hopes he would call me the next day. I, like Shields, have not talked to him.”

(See full report on Aug. 16 meeting here).

In the petition, Etter paints a different picture in which he said he was contacted on August 2 by the Mayor by telephone and she urged him to “hang in there” and “let things cool down.” At no point during this conversation did Hansel indicate to Mr. Etter that she was under the impression he had resigned his council seat.

He then said on August 3, Etter met with Shields in his office where he said he was extremely upset by the previous evening’s events and that Etter would contact Shields at a later date to further discuss things. There was no mention during this conversation that Etter had resigned his Council seat, the petition read.

Later in the petition, Etter said neither Hansel nor Councilman Jim Valentine could confirm that Etter could make an unequivocal statement directly to the Council to resign his position, but his desire to resign was based on ‘innuendos’ made to the public.

The petition reads:

“Hansel’s comments during the meeting that she and several other council members had contacted Etter to request that he make a ‘formal resignation’ are directly inconsistent with the position the Council is now taking, and indicate that at the time of the August 16, 2016 meeting neither the Mayor nor the Council believe that Mr. Etter had effectively resigned his position.”

The petition goes on to read.

“Mr. Brown’s statement is both factual and legally incorrect, as Mr. Etter never made a direct, unequivocal statement to the City Council or an individual City Council member indicating his intent to resign from his elected position.”

In the petition it reads,

“Etter told Sumner Newscow on or about August 18, that as far as he is concerned he has or had not resigned from the council.”

Then according to the petition on August 24, 2016, council member Kelly Hawley sent an e-mail to other council members in which she stated:

“Regarding the Step Down Mr. Etter fiasco, I am extremely bothered that so much has gone on and yet council has been eerily quiet and uninformed… I refuse to be part of this forced resignation. I do not support the effort by any council members or mayor to remove an elected official from office by twisted means. WE ALL understand what happened. Let it be what it was and move on.”

The petition then stated

“On or about August 29, 2016, the city advertised a vacancy on the city council and requested that applications be submitted by Sept. 6, 2016 to serve the remainder of Etter’s term until Jan. 13, 2012… Neither the city nor the council has the authority to fill this position as Mr. Etter never resigned his council seat.”

There is nothing in the Sept. 6 agenda submitted to the public that indicates the vacancy will be filled Tuesday night.

———

Correction: In a previous version of this story it was stated Wellington City Manager Shane Shields stated at the Aug. 16 meeting: “I have had no contact with him (Kip Etter) since the last meeting.” Shields actually stated “I have not had any contact with him since last week and no indication of his position.”

In a letter sent to Sumner Newscow and the governing body after the first version of the story ran on Sunday, Shields said, “I indeed talked with Mr. Etter on August 3, the day after the council meeting. I have never indicated otherwise. And, since that conversation with him on August 3, I had no other indication from him regarding his council position.”

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