BAXTER SPRINGS, Kan. — Attorney Kevin Cure has filed affidavits in Baxter Springs city court seeking misdemeanor criminal defamation charges against Mayor Jenifer Bingham.

Cure filed the affidavits on behalf of his clients, six Baxter Springs City Council members opposed to Bingham’s recent actions.

Bingham didn’t return a phone call seeking comment on Monday.

Cure cites in the affidavits that Bingham at the April 24, 2012, City Council meeting claimed she had a photo of council members conducting an illegal meeting. The affidavit notes that Bingham’s statement was reported by several news outlets, including The Joplin Globe.

“She, in fact, did not possess such photograph on April 24, 2012, or on any other date, as no such meeting or gathering of any kind occurred by the six council members she stated had the meeting,” reads the affidavits.



HISTORY

Turmoil surfaced in Baxter Springs city government on April 10, when Bingham appointed her own choices to replace City Clerk Donna Wixon and police Chief David Edmondson. The council rejected the mayor’s appointments by a 6-2 vote.

Bingham followed up the next day by placing Wixon on paid suspension and changing the locks at City Hall. The council has since restored Wixon to her job.

Bingham has said Wixon was receiving free cable television service, which is a city-owned utility. Wixon and Councilman Gary Allen have said the council approved the agreement so Wixon could serve as monitor for the system and notify a technician of problems. Bingham also said that the Kansas Bureau of Investigation was looking into Wixon’s actions. That was not the case, according to the KBI.

Cure is filing affidavits on behalf of council members Allen, Robert St. Clair, Mike Kaufmann, Ron Steele, Ron Costlow and Ed McAfee.

The affidavits read that Bingham’s statements were made with malice and exposed the council members to public hatred, contempt or ridicule, and tended to deprive them of the benefits of public confidence and social acceptance, fitting the definition of criminal defamation.

The law states that the truth of the information communicated should be used as evidence. Calls by Cure for Bingham to produce the photograph have been unanswered.



RECALL PETITIONS

The affidavits note that the mayor’s statements have prompted the circulation of petitions seeking the recall of St. Clair, Costlow, Allen and McAfee. The petitions are based on allegations that the council members violated the Kansas open meetings law.

Cathy Bolek, an organizer of the recall effort, said the allegation was not based on Bingham’s statement, but on witnesses and on her own suspicions based on the actions of the mayor’s opponents at the April 24 meeting.

Recall elections for McAfee, Allen and Costlow will be on the Nov. 6 ballot in Baxter Springs after the recall petitions were certified by County Clerk Crystal Gatewood.

Gatewood on Friday determined that the petition to recall St. Clair was invalid, noting that if four members of the eight-member council were to be recalled, it would represent more than a quorum of the City Council, preventing it from ever meeting. Gatewood said she made the ruling on the advice of County Attorney John Bullard.

Bullard on Monday cited the state law related to sufficiency of recall petitions. It reads that the county clerk shall notify the recall committee that a petition is improperly filed if the number of officers of the same governing body to be recalled equals a majority of the members of the governing body minus one.

On the eight-member council, a majority is five members, so a majority minus one is four members.

Bolek said she needs time to review the ruling, but she didn’t think there would be adequate time to challenge it before the general election ballot is printed.

Bolek had previously said her group, Citizens for a Better City Government, was trying to get a majority of Bingham’s opponents recalled, so that those remaining would vote to approve replacements appointed by the mayor until the next city election in April.

“The whole reason I became involved is because I’m involved in the Chamber (of Commerce), and I was trying to get involved in things for my community and I kept running into roadblocks” on the City Council, she said.

Cure said a special prosecutor likely would be sought to review the affidavits, because City Attorney Robert Myers would have a conflict of interest in prosecuting the case.





Law’s background

Kansas is one of the few states with a criminal defamation law still on the books. The Kansas Press Association has unsuccessfully lobbied the state Legislature to have the law rescinded, because it many times has been used to prosecute publishers and reporters.