Herbel fights recall
‘Illegal’ text was just a thank-you
Marion city council member Ruth Herbel is challenging a recall petition being circulated in an attempt to oust her six months before her term expires.
The petition is being circulated by Marion mayor David Mayfield; his wife, Jami; Margaret Wilson; Marion electric supervisor Steve Hart; and two relatives of city treasurer Becky Makovec.
Kathern Swan is her mother and Morgan Makovec Looney is her daughter. A photo Mark Skiles showed to Makovec figured into his termination as city administrator.
The petition says the recall is sought because of “misconduct in office: (1) violation of KSA 75-4317 Kansas Open Meetings Act by texting councilors Zach Collett, Christ (incorrectly spelled in the petition) Costello and Jerry Kline on Nov. 3 at 3:16 p.m., which is considered a serial meeting and (2) violating City Code 1-401 Oath of Office by revealing executive session information regarding employee personnel information and attorney-client privilege information to the public, via Eric Meyer with Marion County Record.”
The message Herbel sent Nov. 3, in response to a notification about a plan for an all-night blackout the city coordinated with St. Luke Hospital, read simply: “Thanks.”
She accidentally had hit “reply all” and denies that text amounted to a serial meeting by state definition.
“A serial meeting is something that would make a binding decision,” Herbel said.
As for the accusation that she violated her oath of office by revealing personnel information and attorney-client privilege, no sessions to discuss Skiles were conducted under attorney-client privilege and no attorney was present for those from which she shared information.
The Kansas attorney general’s office also has stated that the Open Meetings Act does not preclude any individual from disclosing what was said in an executive session except in very limited circumstances.
“My supposed violation of my oath to defend the U.S. and state constitutions and faithfully discharge my duties is based on my choosing, as can any elected official under state law, to disclose what was said in an illegally convened executive session that led to an unlawful firing that could cost the taxpayers as much as $75,000,” Herbel said. “Public officers are fiduciaries and trustees of public interest, and they owe an undivided loyalty to the people they serve.
“Recall is for officials who have broken the law, which I haven’t done.”
For his part, Meyer, specifically mentioned in the recall petition, said the allegation that Herbel told him any information from an executive session called for attorney-client privilege was “a complete fabrication.”
Herbel plans to file a statement about the petition with the county clerk by Friday.
County clerk Tina Spencer said state law required such statements to be kept on file in her office and made available for public review.
If 201 signatures of registered voters are gathered within 30 days and verified within the following 30 days, the soonest a special election could be conducted — at a cost of $4,000 — would be four days after the deadline for anyone wanting to run for Herbel’s council seat to file for election, Spencer said.
The petition was submitted to Spencer Jan. 30. As required by law, she submitted it to county attorney Joel Ensey for verification that it met technical requirements to be circulated.
As required by law, he did not evaluate any of the reasons for the recall, only that reasons were stated in proper form.
Spencer notified the petition sponsors last week that the petition could be circulated.
If enough signatures are valid, an election could be conducted within 60 to 90 days, between June 5 and July 5.
Herbel’s term expires in January. Spencer said anyone interested in running for her seat could file for election by June 1.
Herbel was elected in 2019 with 304 votes and is in the last year of her term.
If she were to be ousted in a July 5 election, it would cut less than six months off her term.
Mayfield also is in the last year of his term.
Herbel told the Record at the time Skiles was fired that one of the pieces of evidence used against Skiles was that he had shown Makovec a photo, not pornographic in nature, of a scantily clad downtown Marion business person who formerly had worked as a professional model in adult films.
Makovec later expressed concern that this allegation was made public.
Among other things, Herbel contends that city council members were not allowed to inspect evidence against Skiles and that the council did not discuss its contractual obligation to pay him for six months and provide benefits for nine months if he were fired. She also contends proper procedures to grant him a hearing were not followed.