When Kurt Krakowian withdrew his resignation from the Hewitt City Council in July, city administrators said it was too late, and the remaining council went on to accept the resignation.
But state elections officials and local attorneys familiar with municipal law say Hewitt city officials got it wrong and should have allowed Krakowian to continue serving.
Krakowian sent a resignation letter July 13 by email to City Manager Adam Miles. Three days later, he sent Miles another email seeking to rescind the offer, just two hours before the council was set to approve the resignation, according to documents obtained through the Texas Public Information Act.
Miles promptly forwarded the email to council members. Then, 13 minutes after receiving Krakowian’s request, Miles sent him an email denying it.
“I have been informed by legal counsel that it is too late for you to withdraw your resignation,” Miles wrote. “The vote is not required; it is a mere formality. Please direct any further emails to the City Attorney.”
Krakowian recalled Tuesday that he tried multiple times that afternoon to call and text Charles Buenger, then the city attorney, but got no reply. The council voted unanimously that evening to accept the resignation, with Councilman Bill Fuller absent.
Mayor Pro Tem Steve Fortenberry recalled Wednesday that Miles informed the council before the meeting of Krakowian’s request but told them it was too late.
Since the vote, the city has scheduled a special election on November 6 to fill the vacancy of Krakowian’s at-large seat on the council. Eight residents — including Krakowian’s wife, Kathy — have filed to run.
But local attorneys versed in government law say Hewitt did not follow state election laws in turning down Krakowian’s request for withdrawal.
The Texas Election Code states that a resignation is not valid until eight days have passed or until it is accepted by the appropriate authority, whichever comes first.
Local attorney David Schleicher, who has represented businesses, nonprofits and government employees in private practice since 1996, said he reads “authority” as the city council, not the city manager, who is the council’s employee.
“Of the few circumstances under which bad information from the government is a basis for reversing an outcome, I can think of none that would apply here — even if a city manager turned out to have misled a council member about the law on purpose,” said Schleicher, a former Waco Independent School District trustee. “The remedy, if any, would seem to be to run for re-election and then, if winning, propose discipline for the city manager.”
The appropriate authority to accept a resignation is whoever is authorized to call an election to fill a vacancy, said Sam Taylor, the Texas Secretary of State’s Office director of communications. In Hewitt, only the city council is authorized to call an election.
Taylor said the city council is usually the appropriate authority, although some city charters grant a city manager the ability to call for an election or accept resignations. Hewitt’s charter has no such provision, said City Secretary Lydia Lopez.
Waco attorney R. John Cullar, whose practice focuses on employment law, agreed that the council would be the authority to accept a resignation letter, barring a special charter provision.
“If a resignation has been tendered but not accepted it can be withdrawn,” Cullar said.
Miles said this week that he was only the messenger in the email exchange and passed information he re- ceived from Buenger to Krakowian.
Buenger was recently dismissed by the city council in a 4-2 vote and replaced with Waco attorney Mike Dixon. Buenger could not be reached for comment for this story, and Dixon declined comment on the case.
In a press statement announcing his resignation July 13, Krakowian said the move was “for the best interest for the city” after “another frivolous complaint” was filed against him.
At the time Krakowian resigned, seven complaints by city employees had been filed against council members. Complaints against Krakowian included filings by Miles and Belinda Kay (Katie) Allgood, the city’s managing director of administration.