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Galena City Attorney Responds to Indictments - KOAM TV 7

Galena City Attorney Responds to Indictments

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GALENA, KANSAS - The Galena City Attorney responds to the mayor, along with a former and four current city council members, facing potential felonies, jail time, and forfeiture of office.  

Indictments from a state grand jury for misuse of public funds were issued this week, centering around the purchase of 30 acres of land near 11th and wood streets.

Those indicted are: Mayor Dale Oglesby, Paul Allen, Todd Martin, Lance Nichols, Ashley Qualls, Josh Reed, and former council member Linda Watkins.

The city officials are accused of purchasing the land to settle a lawsuit between the former owner of the land, and the companies which the city hired to do construction on the land.  

Galena City Attorney, Kevin Cure, released a formal response to the charges. Which reads, in part: 

"All of these people are of high integrity and dedicated to serving the city of Galena, Kansas, on a volunteer basis, often at great personal pain and with destruction to their reputations that is unwarranted."  

In both his statement and an interview with KOAM/Fox 14, Cure says the indictments are a symptom of a flawed grand jury system.

"We should have allowed to have our city council members go in and testify," Cure said. "They only had Mayor Oglesby testify. And they only touched briefly on this subject without going in depth about all of the sound policy reasons for doing this. Now I am completely insured, in my opinion, that there is no case here. And it is a travesty of justice for them to be indicted."

Cure says he believes charges will be dropped after consideration from a state prosecutor.

If state prosecutors decide to pursue charges, the first court date is July 2nd.  

Below is Cure's statement posted in it's entirety:

From:  Kevin Cure, City Attorney

I am writing to express my astonishment and extreme disappointment that an indictment was issued against certain public officials of the city of Galena.  All of these people are of high integrity and dedicated to serving the city of Galena, Kansas, on a volunteer basis, often at great personal pain and with destruction to their reputations that is unwarranted.  The persons wrongly charged are Mayor Dale Oglesby, Councilmembers Paul Allen, Lance Nichols, Ashley Qualls, Todd Martin, Josh Reed, and former councilmember, Linda Watkins.  The charge against each of them is completely unfounded for the reasons explained below which will be indisputable facts when presented at any subsequent hearings.  We completely welcome presenting our side for the first time to the public.  I wish the grand jury had desired to hear our side from each councilmember.

An indictment of the charge of Misuse of Public Funds was made by the grand jury.  The charge is that these officials knowingly each as a person having control of public money by reason of his or her official position as members of the governing body used this money in a manner not authorized by law.  The theory is these city officials paid $100,000.00 to Don Fitzer to acquire 30 acres to settle a private party lawsuit on behalf of Brian Jordan's companies of Jordan Disposal and Black Cat Trucking that Don Fitzer had filed against these companies.  The city council action in authorizing this purchase was completely legal, done in an open meeting, well within their authority, and was the implementation of excellent public policy.

Don Fitzer owned 30 across directly to the south the Galena football stadium.  Upon this ground is what is commonly referred to as “Blue Hole.”  It is a mined pit that is very deep and large.  Galena is the permit holder for the operation of a monofill upon the premises.  For years, Fitzer operated the monofill while Galena held the permit and the city received a tipping fee based the amount of tires that persons and businesses brought into the monofill to fill the mined pit.  Fitzer kept the remainder of the proceeds.  There is no written contract of the arrangement that is known to city officials.  The arrangement with Fitzer was made before the above city councilmembers ever came into office.

The Kansas Department of Health and Environment (KDHE), through its inspector, advised the city it was not operating in compliance with the permit.  The operator, Fitzer, failed to fence the property and maintain gate security, according to the inspector as Mayor Oglesby told me.  Mayor Oglesby has advised me there were repeated problems including that records were not being produced by Fitzer to verify the amount of tires and the materials that were placed in the mined pit so that Galena could verify the amount of income it should receive from Fitzer.

Mayor Oglesby advised me that KDHE was nearly ready to revoke our permit and press for the closure of the monofill which would have been at great expense to the city of Galena and its taxpayers.  This expense could have been as great as $500,000.00 to fill and close this monofill.

Mayor Oglesby stated after repeated attempts to compel Fitzer to operate the monofill it a manner that complied with law, the city made a decision to substitute a company owned by Brian Jordan to be the operator instead of Fitzer.  Mr. Jordan accepted the offer of the city to dump concrete into the monofill to assist with compliance problems.  This prompted Fitzer to file a lawsuit against Jordan.   If the lawsuit was not settled it is very likely Fitzer would have added Galena to the lawsuit or that Jordan would have done so because he operated on the property at our request.  That would have cost the city thousands of dollars to defend from depositions and other expenses and placed the city at substantial risk of a large judgment against it.  The likely possibility of the city being added as a defendant in the lawsuit can be confirmed through Fitzer's attorney, Richard Loffswold, and Mr. Jordan.

In the wise discretion of public policy the city decided to acquire the property for multiple reasons.  It purchased the 30 acres from Fitzer for $100,000.00.  This provided the following opportunities and benefits: 

1.      This monofill can be operated by the city free from the complicated relationship that existed and compliance with KDHE environmental regulations could be assured thereby avoiding the possibility of fines or the potential that closure would be ordered by the state of Kansas risking a potential $500,000.00 expense to the city as the permit holder. 

2.      It is estimated the monofill will generate $40,000 a year for 10 years from filling it with tires for a total of $400,000.00 to the city.

3.      By filling it up the closure costs in about 10 years would be minimal and vastly less than the $500,000.00 estimate, potentially the closure costs would be minimal.

4.      The 30 acres could be used for the future relocation of the city barn that is located across the street, if needed.

5.      The school district may want to locate a parking lot for football game overflow on some of the land.

6.      The school district's construction class is building one house per year.  The superintendent has indicated the preference is to locate them near the schools.  There is limited property for this purpose.  The city and school district could work together in this area by the city donating land for this purpose.  It has done so before for this purpose on property about a block away.  Construction benefits the city and school district.

7.      The fence now located around the mined pit assists with making it safer from straying children that might fall into the mined pit.

8.      The city avoided being named a defendant in Fitzer's lawsuit and avoided the potential liability from the lawsuit.

9.       Once the monofill is filled and the $500,000 expenses avoided and the $400,000 revenue is made some of the property can always be resold.

In summary. the $100,000 expenditure may save and generate the city nearly a combined $1,000,000.00

Additionally, I have some thoughts about the archaic Kansas grand jury process.  I believe the grand jurors were handed an awesome responsibility and tried to do their best.  I believe no indictment would have been issued if the grand jury had interviewed any of the city councilmembers that were indicted, but it never chose to hear testimony from any of them, except Mayor Oglesby.  The grand jury only briefly touched on the subject discussed above with the mayor and certainly didn't get to hear most of the points above.  No city official gets to cross-examine the grand jury's witnesses that testified against our city officials before the indictment was issued.  At least the witnesses will now have to emerge from the shadows and be subject to cross-examination at hearings and any trial from every attorney representing the councilmembers.  Finally, no judge was involved in determining if probable cause existed before the indictment was issued as that is not a part of the grand jury processs.

No legal counsel I have discussed the matter with believes this is an offense or believes this indictment is sustainable as the facts above are accurate and no offense is present.  I am very concerned about the chilling effect upon attracting good candidates to public office that the grand jury process poses when persons who don't deserve indictment are indicted. 

I will also note that Mr. Jordan spent over $100,000.00 from his work at the monofill without expense to the city from his bulldozer falling into the mined pit, its destruction and the expense of removing it from the mined pit.  Additionally, he installed the safety fence around the mined pit without charge to the city.  I wish to thank him for all of his valuable contributions to building our city, including the substantial expense he incurred in the improvements to our Little League park. 

I am glad the grand jury found nothing else to indict upon as numerous mistruths

were likely testified to by some of the witnesses appearing before the grand jury.  It will be interesting to see if any of them committed perjury. 

I hope these councilmembers and our mayor will hear from our citizens with their support.

Sincerely, Kevin Cure


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