Saturday, Nov. 07, 2009

Gardner council members file suit over recall petition

Two Gardner City Council members filed a lawsuit Monday to quash a recall petition seeking to remove them from office.

They say the petition is based on false allegations, unlawful actions and does not meet all the technical requirements as described by state law.

Attorneys for Mary Peters and John Shepherd filed the suit in Johnson County District Court, asking a judge to review the recall petition, the actions of all the parties involved in preparation of the petition and to declare the petition unlawful.

They also want the court to issue a restraining order to immediately stop the efforts of the defendants and an injunction stopping the petition drive and any vote that could result from it.

Johnson County Election Commissioner Brian Newby, Johnson County District Attorney Steve Howe, Gardner Recall Committee members Ryan Beasley, Jared Taylor and Charles Clark are named as defendants in the suit.

“They know there are no facts behind this petition,” said Doug Patterson, an attorney representing Peters and Shepherd. “They didn’t plead their case with facts and they know they can’t defend it.”

Shepherd and Peters had 30 days to file a rebuttal to the recall petition and hope that the courts will determine that the petition does not qualify under state law.

Patterson said that Howe found that neither Shepherd nor Peters committed a criminal act or ethical violations when reviewing the Recall Committee’s allegations, so for the committee to move forward with a petition based on unfounded allegations nullifies the petition.

Under state law, however, Howe’s office could approve the petition whether the allegations are true or false.

In a letter to Peters, Shepherd and Councilman Dan Thompson, Howe wrote that “the truth or falsity of the allegations asserted in a recall petition under (state law) is a matter properly left to the determination of the electorate.”

The Gardner Recall Committee alleges in the petition that the three council members violated the Kansas Open Meetings Act and law regulating conduct of elected officials when they sought to revise the city’s charter ordinance.

The effort was an attempt to strip power from the mayor.

Thompson was left out of the recall because state law prohibits recalling a majority of a governing body. The council has five members.

The lawsuit states that “the facts and conclusions described in the recall petition do not support the grounds for recall as stated in the petition.” It also lists several instances where the petition did not meet technical requirements as described by law.

What the petition does not describe, Patterson said, is that the three members ever had a meeting. He said his clients never conducted an illegal meeting and they followed proper procedure in asking about how to make changes to the charter ordinance.

“They (the defendants) know the facts are not there,” Patterson said.

The Recall Committee sees this as another attempt by Peters and Shepherd to use their power to control Gardner residents and move their political agenda forward.

“We believe that this injunction to stop the recall is an action in a long line of actions that demonstrate that Mr. Shepherd and Mrs. Peters have little regard for the people or the democratic process,” the Gardner Recall Committee said in a written statement. “We support the future of Gardner and the rights of the people to recall their elected officials when it is believed indiscretions were committed. The District Attorney found evidence and concluded that our recall could go forward. Mr. Shepherd and Mrs. Peters are attempting to stop the voices of the people of Gardner to be heard.”

The committee said it would continue to move forward with collecting the required number of signatures for a recall vote, which could happen in April depending on the outcome in court.

A judge will be assigned the case while all the defendants are notified of the filing. A hearing has not been scheduled yet. Outside of the courtroom, Peters and Shepherd discussed the possibility of removing Beasley from the Gardner Electric Utility Board because they couldn’t understand why someone would serve the city when he doesn’t agree with the council. They also thought his actions with the recall petition were unethical and causing further division in the city. Beasley was appointed to the board by former Mayor Carol Lehman.

During a council meeting in October, the issue was discussed, however, Mayor David Drovetta advised the council members to rethink their position because of the implications the action would have on further appointments.

Drovetta said it would be a “slippery slope” to manage voluntary members of the city’s boards to have the same political thoughts and actions of the council, which is detrimental to the democratic process. He also said the recall petition is a separate matter that is not under the jurisdiction of the council.

The council asked the city attorney to research whether Beasley’s actions violated state law or city policies in his position on the board. The issue could be placed on a future council agenda for discussion and action.

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