Gardner City Council member Steve Shute withdrew a resolution to censure council member Larry Fotovich after learning such an action may violate Fotovich’s due process and potentially create liability for defamation and libel.
City attorney Ryan Denk said Roberts Rules of Order, the parliamentary procedure partially used by the city’s governing body, lays out a formal procedure for censuring a member of the body for acts of which the council was not a witness. Denk said the full procedure would require the formation of a special committee, an investigation and a formal trial before the passage of a resolution of censure.
“These steps are required to ensure that a libel or defamatory statement of fact is not achieved by the (governing) body,” Denk told members of the city council.
A month ago, council member Tory Roberts moved to censure Fotovich for allegedly moving to Olathe. That motion died for lack of a second, though council member Heath Freeman said he would entertain such a motion when all council members were in attendance. Shute did not attend that council meeting.
Fotovich purchased a house in Olathe and his Gardner home is currently listed for sale. A handful of residents spoke during the meeting’s open remarks requesting that Fotovich resign. Last month, residents also presented an informal petition to the city council requesting a similar action. The petition included a few names that may not have been real people. For example, “Me So Horny” was a signatory.
A few weeks later, Shute introduced a formal resolution of censure, however it was tabled after council member Kristina Harrison left the meeting early.
“My interpretation is a censure would be discipline. Therefore, we would be required to walk through a procedure before a formal action,” Denk told council members during the June 16 meeting.
Shute’s resolution would have censured Fotovich for “conduct which has been deemed detrimental to the spirit of representation of the constituents of the city of Gardner, Kansas.”
Council members approved changes to an ordinance that governs who can serve on the city council last month. According to Gardner ordinance, in order to serve on the Gardner City Council, a member must be a qualified elector of the city of Gardner, or registered to vote in Gardner. There is no residency requirement. The only positions within the city of Gardner that require residency are the police chief and the city administrator.
Fotovich said he is a qualified elector of the city. Council members unanimously declined to change that particular provision.
“I personally felt that if we had an issue, we should have changed the rules and we didn’t,” Harrison told the council.
Shute said he hoped Fotovich would consider the counsel of the people.
“I still hope the individual on the dias begins to listen to the people of the community,” Shute said.
Fotovich said he believed he was serving the voters by continuing to serve on the council. He said he is one of three elected members of the council. The other two are appointees. If he left, Fotovich said it would flip the scales and create a council with an appointed majority.
“If I have a duty to the people who elected me,” he said. “…I still represent the people who elected me. Everything I’ve done is legal. I will resign when the (Gardner) house is rented or sold.”
In other business, council members:
• tabled a contract extension for the janitorial services of Right Way Janitorial. Council members said they did not receive a copy of the contract in their packets.
• approved the acceptance of a lease agreement for a small digger truck and a large aerial lift truck for the electric utility. Under terms of the agreement, the city will lease both vehicles for a monthly rate of $6,500.
Censure withdrawn over legal concerns