2nd resignation leaves confusion in Peabody
Staff writer
The sudden resignation of city councilmember Julia Ensminger has thrown Peabody government into procedural confusion and raised questions about how the city legally can conduct meetings after dropping below its normal council quorum.
The city sought guidance from the League of Kansas Municipalities after Ensminger’s resignation, Mayor Bailey Penner said.
“So we reached out to the League of Kansas Municipalities and consulted their legal counsel,” Penner said. “And they informed us that as long as we do not perform any special meetings before the next date, our quorum will be the maximum capacity of the council we already possess rather than the five. So it would be the two councilors and myself capable of launching a regular meeting, but no special meetings.”
Despite the mayor’s statement, an official city notice (which incidentally listed an incorrect date) announced a special meeting for Tuesday night, a week before the next regular meeting, at which time the mayor and council are expected to fill three vacancies on the five-member council.
City administrator Paul Leeker defended the scheduling.
“So I’ve reached out to the League of Kansas Municipalities, and it’s very straightforward,” Leeker said. “If all three members are present, we have a quorum. So special meeting, no special meetings, the members are present. It’s a quorum. So we can hold the meeting.”
Penner separately said that, upon becoming mayor, he no longer retained council voting powers — a contention borne out by Peabody City Code.
“So, no,” Penner said when asked whether he still functioned as a councilmember. “Because I’ve inhabited that spot, I’ve relinquished my legislative powers as a councilor. So I’m no longer able to vote on business decisions. I can only make recommendations to the council on how to proceed on certain things, and I can make recommendations on appointed officers.”
The debate proved moot Tuesday night when one of the two remaining council member s, Andy Rosine, failed to show up and the council could not convene.
The city plans to appoint replacement council members at the beginning of next Tuesday’s regular meeting, before conducting normal business. Applications for the vacant seats are due Friday.
State law allows councils to fill vacancies even if resignations leave it with less than half of their members and thus potentially unable to establish a quorum.
Leeker contends that vacant seats don’t count when calculating whether a quorum is present.
“We have spoken to several attorneys at the League of Kansas Municipalities, explained the situation, and they have assured us that this is OK,” he said. “So unless you have a law degree that I’m unaware of or have spoken to another attorney who is able to provide a reason why these attorneys at the League of Kansas Municipalities are wrong, I’d be really curious to see what legal opinion this is based on.”
The Record did consult an attorney who said the question of whether two council members being present would amount to a quorum. He raised another issue: Under state law, any discussion of city business amonmg the two outside of an official meeting would be a violation of the state’s Open Meetings Law.
Leeker said he would not charactize what’s happening in Peabody as “actively falling apart.”
“I think that that is hyperbolic language,” he said, “and I would simply say we have three voting members, and the League of Kansas Municipalities assures us that that satisfies the need for a quorum.”
Despite his assertion, both state law and city code clearly state that Peabody’s mayor is not a voting member of the council. He does, however, have the power to nominate replacement council members, subject to the advice and consent of the two remaining council members.
Asked whether the city had documented the legal guidance he received from the league, Leeker said: “I am not going to answer legal questions. I’m going to answer the question about the quorum, but otherwise I’m not going to answer that question.”
Penner acknowledged that ongoing instability inside city government had contributed to the current situation.
“To give you the short answer, yes,” Penner said.
Ensminger’s resignation adds to months of upheaval in Peabody city government, including turnover in the police department and the mayor’s office and continuing disputes surrounding city leadership and operations.
Asked to explain her reasons for resigning, Ensminger, who provided the lone vote against Penner becoming mayor after the resignation of Kevin Burke, declined to comment.
The special meeting planned for Tuesday night was recharacterized as an “informal discussion” after Rosine was unable to attend. T
he meeting was in regards to an already in-place sales tax that is about to sunset.
The council will convene for its regular meeting Tuesday, a day later than usual because Monday is Memorial Day.