Marion ordinances a jumble
Nothing is likely to change or be overruled, but Marion may have “charter ordinanced” itself out of an operating governing body.
Through the years, the city has passed a series of charter ordinances exempting itself from state laws. But when doing so, it sometimes has failed to add back in language to define what kind of governing body it was, including provisions to make the mayor a voting member of the city council.
Council member Ruth Herbel asked at the beginning of Monday’s council meeting to talk about the jumble of ordinances.
She was particularly concerned about how to handle appointing a new city council member to replace Chris Costello, who resigned last month.
“The way the city is currently set up does not follow the traditional form of city government for city’s (sic) of the second class under K.S.A. 14-101,” city attorney Brian Bina wrote in an email to Herbel before the meeting.
At the meeting, Bina said “We have this quasi home-rule entity that really doesn’t follow any statutes as to vacancies, and it doesn’t dictate who has a vote.”
In 2005, the city passed Charter Ordinance 11. It exempted the city from several provisions of state law and allows for the election of a mayor and four council persons at large. A section of the ordinance also made the mayor a voting member of the governing body.
In 2012, the city replaced charter ordinance 11, repealing it without including the voting previously adopted by that section.
Subsequent charter ordinances also failed to include that section.
“Upon further review, it appears Marion is quite unique across the state for its structure,” Bina wrote to Herbel. “It does appear quite clear that the mayor has voting rights under the city’s home rule power. I would add that the City Code (1-201) currently outlines these intentions even though the charter ordinances have been amended and/or repealed.
“While this creates a unique situation, it would be inherently construed that since 2012 the mayor has voted repeatedly. To attempt to now go back and make the change that the mayor is not allowed to vote would not be either the intention nor feasible.”
Bina also said “we don’t have an ordinance about who makes appointments.”
State law spells that out, “but the city passed a charter ordinance exempting itself,” he said.
“Now we’re left with a modified form of city government without saying we’re a modified form of government.”
Bina told the council Monday that it had 60 days to appoint someone for Costello’s unexpired term.
If more than 60 days passed, the city would have to have to vote on a resolution to conduct a special election, Bina said. The election then would have to take place within 45 days of the resolution.
At that point, Mayfield moved to appoint Burkholder.
Council member Zach Collett seconded the motion.
Herbel voiced concern, saying “I would rather have the public make the decision on who sits in that seat.”
She abstained from the vote, though doing such typically is limited to situations of conflict of interest.
She said she thought the city needed to clean up its ordinances, and Bina agreed.
“I appreciate you bringing this matter to my attention,” Bina wrote in his email to Herbel. “It appears this is a situation the City may need to clarify moving forward, I would recommend a modification with a Charter Ordinance to clean up any gray area that may remain.”
Collett also agreed but said it was a separate matter than appointing Burkholder.
“I completely agree that we need to go back and look at things,” he said.
Herbel continued to question Mayfield’s ability to vote and appoint a council member.
“A wrong doesn’t make a right,” she said.
“I completely agree with you,” Collett said.
But he asked Herbel, are we “not going to appoint (a council member) now because we don’t know if Dave has the power to vote? Are we going to go back … and say Dave shouldn’t have voted?”
Council member Jerry Kline said that in the past, whoever finished closest in the last city council election filled vacated seats.
Herbel previously said she also thought that’s what should happen.
Zoning commission chairman Darvin Markley finished closest in the last election. He said he told Kline he was interested in filling Costello’s seat. Mayfield said the council only received one “application” — Burkholder’s.
Kline voted to support Burkholder, as did Mayfield and Collett.
Council members talked about having a session to discuss charter ordinances but did not set a date to do so.
Last modified March 22, 2023