Albert Rukwaro
Special to The Gardner News
Gardner city council-members discussed proposals to amend the rules governing their conduct on social media sites and the steps they need to take to pass a motion of censure against any member accused of violating rules.
The council-members, during a meeting Feb. 4, expressed concern that their first amendment rights could be violated by proposals to streamline their conduct on social media.
Amy Nasta, city clerk, told the council that the members should be mindful of both the letter and spirit of the open meetings act (KOMA) and recognize the potential for personal posts to be considered by the public as the official position of the city.
She proposed that council members should not post official information about the city without first consulting with the public information officer as potential errors could have unforeseen consequences or may create unforeseen liability issues.
In her presentation, Nasta said that elected official should not use official city social media sites for campaign purposes.
Ryan Denk, city attorney, said that council members were free to express themselves on their personal social media accounts as long as they are not holding themselves out as speaking on behalf of the council.
“Make it clear that it is in your personal capacity,” Denk advised.
On censure motions, council-members discussed ways to censure any member who violates rules of conduct.
Lee Moore, council president, suggested censure motions be discussed in executive session, a suggestion that was quickly shot down by Denk who said KOMA rules don’t allow for discussions concerning elected officials in executive session.
Denk said that for a censure motion to occur, the alleged offender has to be given an opportunity to be heard.
“It’s called a name-clearing hearing. That’s a minimum,” he said.
Randy Gregorcyk, council member, wondered why the council should do anything about the process of censure while it is clearly spelt out in the Roberts Rules of Order.
“Why reinvent the wheel?” he asked.
Moore however said the rules as currently written do not make sense.
“If we can’t do anything in executive session for violations that happened in executive session, that doesn’t make any sense,” he said adding that the council should be able to decide that a behavior by a fellow councilmember was wrong without necessarily imposing penalties or sanctions.
But Denk said that a censure motion is essentially a penalty and a sanction, and the accused has a right to be heard.
Steve Shute, mayor, asked whether a simple reprimand would be considered a censure.
“It is essentially the same thing,” Denk answered.
Denk said that the only legal means to censure an elected official is a recall election.
“The law recognizes the electorate as the only suitable avenue to censure an elected official,” he said.

History
In July 2018, Melton posted on his social media page and later read into the public record his proposal to censure Gregoryck. It was Melton’s third attempt to censure someone, once as an individual citizen and twice while on council. All three attempts failed.
In 2017, his attempt to censure Chris Morrow, former mayor, cost the city in excess of $3,000 in attorney fees.
Some of the invoice details include:
$881.50 —Feb. 7, 2017, “Researched legal issues regarding censure; Drafted lengthy e mail to mayor Morrow, Steve Shute, Rich Melton and Cheryl regarding the same.”
$28.50 —Feb. 15, 2015, “Multiple communications with Kansas Supreme Court Library to obtain Section 61 of Robert’s Rules of Order.“
$82.00 —Feb. 15, ,2017, “receipt and review of e mail from Rich Melton with attached legal opinion from Oakland City (California) Attorney regarding censure; Researched legal issues regarding the same; replied to Rich’s e mail.”
$471.50 —Feb. 15, 2017 “Continued researching legal issues regarding censure; Compared variances in 10th and 11th Editions of Robert’s rules regarding the same.”
Research on Robert’s rules was apparently done to determine correct procedure. At the Feb. 23 council meeting, Lee Moore, councilman, suggested amending the resolution citing Robert’s rules, and Goheen disagree. The censure was eventually declared not in order, and it has not appeared on an agenda since that time.
Hourly billing rates differ, according to the invoices. Denk, senior partner, makes $205 per hour; F.C.Dunlay, senior partner, also makes $205; Debi J. Massey, legal assistant, makes $95 per hour; and Teresa A. Mata and Robert L. Turner, associates make $175 per hour.
The invoice on which most of the business dealing with the censure totaled $14,926.50 and also included requests for information on a disputed personnel evaluation — some at the direction of council members, — preparation for and attendance at council meetings, work on the Gardner Land Development code and litigation.
Roughly, the censure research increased the city’s bill by about 20 percent, or 1 of every $5.
This isn’t the first time Melton, Lee Moore and Shute been involved in an attempt to censure. In May, 2014, Melton and Moore presented the council a petition requesting previous councilmember Larry Fotovich’s resignation, who they believed lived in Olathe. The proposal to censure Fotovich, was introduced by Shute, then a councilmember, and it was later withdrawn after council was told such an action might have violated due process and potentially create liability for defamation and libel.