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Council vacancy is up for grabs: Protocol calls for open applications from Ward IV
July 17, 2014 Jerry Purvis   

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Members of the Gering City Council officially accepted the resignation of council member Jill McFarland, but several questions had to be resolved before the vote.

First, a majority of the council refused to approve McFarland’s absence from the previous meeting. Then council members Dan Smith and Don Christensen had to declare a conflict of interest so the findings from McFarland’s code of conduct complaint could be discussed. The former council member had filed a complaint with the city, naming Smith and Christensen as contributing to a hostile working environment.

The council then took up the matter whether to accept the recommendation of the Administrative Committee, which found no provable violations of the code of conduct. The matter had been investigated by attorney Audrey Elliott, who looked over the transcripts and audio and video recordings of the council meetings where the alleged violations occurred. She also interviewed both Smith and Christensen as part of the process.

Council members unanimously approved the findings of the Admin Committee. Smith and Christensen both abstained and council member Rebecca Shields was absent. With McFarland’s resignation, there were only four voting council members left. Mayor Ed Mayo voted in favor to make it a majority decision.

Gering resident Kirk Arnold then asked the council whether it was appropriate to have the investigation conducted by the same law firm that represents the city.

“I find it hard to believe that an independent investigation regarding conduct by the city council was done by its own law firm,” Arnold said. “That was probably not the path to take. The investigation should have been conducted by a third party.”

Mayo explained that under the code of conduct, complaints are handled by the mayor. He said that Elliott, although a partner in the city’s law firm, had no dealings with the city. In effect, she was an independent third party.

“If you truly wanted an independent assessment, you certainly wouldn’t have hired your own law firm,” Arnold countered. “That’s what I’m concerned about. I’m not questioning whether it was a fair job, but prudence would tell you there might be some bias there.”

City Attorney Jim Ellison said the investigation was factual only and no decision was made by the investigator. It was for the city to decide what to do with the facts as presented.

After the council accepted McFarland’s resignation, Mayo asked whether the council wanted to take applications for someone to fill out the remainder of McFarland’s term, as spelled out in a city resolution.

Arnold spoke again, saying the resolution might be in conflict with state statute, which states the mayor shall appoint a replacement.

“The statute said the mayor ‘shall’ appoint, not maybe,” he said. “Your resolution complicates that by saying you can take applications.”

Arnold said the mayor should appoint Phillip Holliday to the position. Holliday is running against McFarland in the November general election – and is the only candidate with her resignation. “It’s very clear what the council should do,” he said. “The mayor should appoint this person.”

However, if McFarland doesn’t sign a “declination of nomination” form with the county to have her name removed from the ballot by Sept. 2, she will appear on the Nov. 4 ballot.

Earlier in the meeting, Holliday had told the council he was ready to assume the duties of council member at this time.

City Attorney Ellison said the statute does not preclude the city taking applications. So council member Larry Gibbs recommended “fast tracking” the process by accepting applications through July 23 and making a choice at the July 28 council meeting.

The council voted to accept the application process, although council members Smith and Justin Allred wanted the mayor to appoint Holliday to the position.

In other action, council members went into executive session to set the price on two modular homes owned by the city on the old McKinley school property. The house at 1460 6th St. was set at $129,900. The other, at 1415 5th St., was set at $128,000. They also accepted an offer for the 5th Street property.
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