by Alan McArthur
Parkville's Ethics Ordinance has come under scrutiny in recent weeks, as former mayor Kathy Dusenbery is accused of violating the ordinance by forwarding an email that appeared to endorse Gerry Richardson for mayor, a race Richardson won handily over Tom Hutsler. The email included her signature listing her title as mayor and the phone number for city hall.
The Landmark this week researched the history of the three-year-old ordinance, including looking at minutes, memos and other information discussed at the time the ordinance was crafted.
The original ordinance was passed by the Parkville Board of Aldermen after questions of ethics were raised regarding the April 5, 2005 election. In that election Deborah Butcher and Hutsler were running for the Alderman Ward 1 seat. Butcher narrowly won that race.
The issue arose from a letter distributed by Butcher to residents on April 3, 2005. The letter included the signatures of six Parkville Planning Commission members at the time and an attached piece of paper endorsing Butcher for alderman.
The signatures were interpreted by many residents as being endorsements of a candidate in a city election.
After several meetings concerning the issue, the board of aldermen approved the current ethics ordinance with a vote of 8-0 on June 21, 2005. Dusenbery was absent from that meeting, but later signed the ordinance.
During the first meeting after the election on April 19, 2005, Dusenbery, mayor at the time, sent a memo and letter to the aldermen concerning the issue.
In the memo dated April 14, 2005, Dusenbery wrote: "Members of the Planning Commission, Board of Aldermen, staff and other city representatives have the right to exercise their freedom of speech and should be allowed to express their personal opinions, but it is inappropriate for any board or committee of the city to use their authority to endorse or appear to endorse a candidate. I believe the April 3, 2005 'open letter' is a serious breach of ethics by the members who signed it. I also believe there must be some kind of consequence and action to avoid similar situations in the future."
When asked about the comments from 2005, Dusenbery said she stands behind what she wrote.
"I do, yes, but I am ready to move forward, let's get this resolved and quit wasting tax dollars on this," said Dusenbery.
In a letter dated April 14, 2005 also to the board of aldermen, Dusenbery wrote: "It is obvious that just because a citizen of our community becomes a member of a municipal regulatory body, he or she does not give up their right to exercise their First Amendment rights to free speech. It also should be obvious that individuals of a municipal regulatory body should not engage in conduct that gives residents an impression they are acting in some official capacity or as a group of municipal officials taking a position in a municipal election, thus setting aside their neutrality as a city body. This letter, while appearing to attempt to be not official in nature, did leave the impression with some of our citizens that a city regulatory body was taking a position in support of one candidate over another. To some citizens, this letter gave the appearance of impropriety, reflecting poorly not only on the Planning Commission, but the city as a whole."
Dusenbery later writes in the same letter, "I believe in future elections it is important the members of the Planning Commission, Board of Aldermen, city staff or any other official representative of Parkville act responsibly and do not engage in conduct that has the appearance of impropriety. When they do find it necessary to participate in the political process, it should only be done in their capacity as a private citizen of Parkville, not in their official capacity.”
Recently, Dusenbery told The Landmark she thinks the ordinance limits her free speech as an elected official.
"Senator Bond can endorse people, (President) Bush can endorse people," said Dusenbery last week.
In the minutes from the April 19, 2005 meeting, Dusenbery proposed several options the board could pursue regarding the planning commission members.
Dusenbery's proposals were to: "draft a letter to each Planning Commissioner and require each member to take a class in ethics and Planning and Zoning; Request resignation of all Planning Commissioners who signed the 'open letter'; and/or Request resignation of all the current Planning Commission members and restructure the Planning Commission."
During a portion of the meeting, the mayor allowed members of the public to speak to the board of aldermen.
At the time of the meeting, former mayor of Parkville William Quitmeier was a Planning and Zoning Commissioner and he spoke before the board. Quitmeier’s involvement is notable because he and Dusenbery are now seeking the same political office. Both are candidates for first district county commissioner this fall. Dusenbery is running as a Republican and Quitmeier a Democrat.
The minutes from 2005 list Quitmeier saying, "If we did not spend city money then it was not a violation and this fact is absent from the report by the mayor; we have First Amendment Rights under the U.S. Constitution and those are so pure."
When contacted by The Landmark, Quitmeier said he has always been against the limitations listed in the ethics ordinance.
"I have always been against the ordinance," said Quitmeier. "I am not a big fan of that ordinance. It seems like a waste of attorneys’ fees to create it."
Quitmeier said he thinks elected officials should have the right to endorse whomever they would like to endorse.
"Kathy is copying my arguments now," said Quitmeier. "She was the one who signed that ordinance. There probably should still be some limitations. Never once in my home emails did I have the audacity to say 'mayor.' I never wore my mayorship like that."
Also during that 2005 meeting Hutsler spoke before the board.
According to the minutes, Hutsler said that, "in the best interest of the community he felt we should move off of this issue and onto the business of running our city."
Contacted this week about the comments, Hutsler said the first meeting was very hostile and that nothing would change the outcome of the election.
"At the time of the very first alderman meeting, Dusenbery, (Dave) Rittman, and (Dave) McCoy attacked Butcher for her ethics," said Hutsler. "I realized the meeting would not change the outcome of the elections. I said we need to move on and not let it happen again."
After the meetings, members of appointed boards and elected officials went through an ethics course.
"The mayor championed the ordinance with some other aldermen," said Hutsler. "The idea is to have a fair election in Parkville. We all had to go through an ethics seminar and the mayor (Dusenbery) sat in the front row."
"My God, of all people, the person who championed the ordinance had better know better," said Hutsler.
Hutsler said that elected officials do have their First Amendment rights, but they shouldn't use their title to endorse another candidate.
"We do have the right to freedom of speech, but if you're an elected official then you cannot use the title to endorse candidates," said Hutsler. "A person has to be held accountable for their actions; just apologizing doesn't get you out of trouble."
In a phone interview from the island of St. Thomas in the U.S. Virgin Islands where he now resides, Dave Rittman, former alderman, said the board felt the ordinance strongly needed to be put on paper.
"The city attorney got sources, models and ideas from different cities," said Rittman. "The city attorney worked on it with city staff. (The ordinance) addressed who we are and how the city, aldermen, and committees represent ourselves to the public."
According to Rittman, the goal of the ordinance is not to stop an official from endorsing a candidate, but to stop them from using their title and making it appear Parkville has endorsed the candidate.
"When you are just yourself you can endorse anyone, when it appears the city is taking a position, that is what we were trying to resolve," said Rittman. "The goal was to put to bed issues, it was not the goal to stop endorsements, just don't involve the city in your efforts. If an individual wants to do (an endorsement) it's a free choice just don't involve the city."
Rittman said that through the process of working on the ordinance, there were not many changes from the original copy presented to the aldermen by the city attorney.
"We had several draft copies and there were a couple of tweaks, but there wasn't much change," said Rittman. "Everyone unanimously voted for it. I felt we strongly needed to put on paper what we're about."
According to Dusenbery, there are not any other cities with the same provision barring city officials from using their titles to endorse a candidate.
"I've done some research and no other community has anything like this," said Dusenbery.
The portion of the ordinance in question is section 107.130. The ordinance reads as follows:
"No member of any board, commission or committee formed pursuant to the ordinances of the City of Parkville shall participate in any activity on behalf of any candidate for public office in any municipal election of the City of Parkville wherein that person identifies himself (herself) as a member of that board, commission or committee as part of the activity on behalf of such candidate. Participation in municipal elections is a right guaranteed by the United States Constitution, Missouri Constitution and the laws of this State. However, using a position of appointment to any board, commission or committee membership in such a manner as to identify your membership on that board, commission or committee as part of any political activity is improper. Such action may portray certain conduct by a board, commission or committee member as the official action of the board, commission or committee."
According to Jack Campbell, attorney for Parkville, the ordinance was put together drawing from an ordinance provided by the Missouri Municipal League, MML, and also from other cities, including Kansas City. However, the sections being discussed currently by the Ethics Commission were inserted specifically by Parkville.
"The sections in question are specific items put in the ordinance to deal with a problem the council thought they had from the 2005 election," said Campbell. "We didn't have a model; it was crafted to resolve the problems."
Gary Markenson, the executive director of the MML, said that about 50 of the 565 member cities in the MML have an ethics ordinance. The MML has an entire library of sample ordinances available for cities to adopt into their codes.
According to Markenson, many cities do not include portions concerning using a title to campaign for another official.
"It is an unusual provision to have included. It is just a common sense thing," said Markenson.
Campbell said the portion was added because of the specific concern brought up in 2005.
"I think Parkville was just concerned about people identifying themselves as chairs to give their title in something that didn't have anything to do with their board or committee," said Campbell.
The ordinance was unanimously passed with a vote of 8-0 on June 21, 2005. According to Dusenbery, if there had many any votes against the ordinance she would not have signed it.
"There was not a single alderman that voted against the ethics ordinance," said Dusenbery. "As mayor if there would have been any dissent from the board this ordinance would not have moved forward."
Dusenbery said the ethics complaint is politically motivated and is being pushed forward with a political agenda to make her look bad.
"To combine my name with ethics and a question mark is way off the mark," said Dusenbery. "Because we all know what this is about, this is not about the ethics ordinance. It has happened twice now; there is a pattern of history with one candidate who doesn't like to lose," she said, referencing Hutsler.
"Let's lay the cards out that this goes deeper," said Dusenbery. "This is a political maneuver to smear my name. I try to get up every morning and do the right thing."
In the most recent mayoral election, Richardson, former alderman, and Hutsler, Parkville businessman, were seeking the mayor seat. Richardson beat out Hutsler with nearly 2/3 of the votes for Richardson.
Concerning the email letter sent by Richardson that she forwarded, Dusenbery said she had the right and duty to send the information on to citizens.
"I had a right and duty as mayor to pass information onto citizens," said Dusenbery.
Dusenbery said that simply hitting the forward button without looking at the email was wrong.
"I admit I did wrong, now let's move on," said Dusenbery. "I admitted I did it, now it is up to the ethics commission."
One of Dusenbery's major objections to the ordinance is she says the ordinance violates her Constitutional right to free speech.
"We need to now revise the ordinance," said Dusenbery.
Campbell also said he had some reservations about portions of the ordinance.
"I have some reservations about them, but it is kind of how it would be applied that matters," said Campbell. "The two sections are good to stop the problems Parkville was having in 2005, but they may raise issues in other fact situations or elections."
Campbell said there may be changes to the ordinance in the future after the ethics commission has concluded their investigation.
"There may be changes in future modifications," said Campbell. "I think it will be examined again.”
At a meeting last week, the Ethics Commission voted 4-0 to pursue an investigation regarding the complaint against Dusenbery. The commission will meet again on Wednesday, May 14 at 5:30 p.m. at city hall. Dusenbery will then have the opportunity to either speak before the commission or submit a written explanation of her actions.