Democracy Denied for Ludington's Fourth Ward

[XLFD]

 City Charter Calls for Democratic Elections

The City of Ludington is failing to put the two candidates who have expressed interest in the open Fourth Ward City Councilor position on the ballot for the November regular election as per city charter, because, simply put, our city clerk has allegedly heard how our charter is to be defined from some unnamed state election officer.  

This narrative falls right into the rest of our elected council's position as they knighted the councilor representing the Fourth Ward at the meeting  without any votes of the regular people and introduced a proposed charter amendment that would make our aforementioned city clerk and the city treasure into appointed positions. 

My public comment at the September 22 meeting pointed out that the city charter is quite explicit about what happens, Section 5.2 says:

"Any vacancy of an elective office, except the Mayor, shall be filled within thirty (30) days by appointment by majority vote of the Council with the Mayor voting in case of a tie. No vacancy need be filled if it occurs within sixty (60) days preceding a City election. Elective officers so appointed shall serve until the next regular election, at which time an election shall be held to fill the remaining period of the term of office..."

Strict interpretations of the section seem to indicate a couple of things.  First, that even if Councilor Marrison had resigned after September 6 (60 days before the November election) that the appointment would have still had to be made, because the November election is not a City election and so the second sentence is not applicable in any case.  The next non-special city election is in August 2016.  Second, that the section differentiates 'City election' and 'regular election' as if they are somehow different. 

Perhaps Ludington's Charter Section 3.3 best explains this differentiation.  It says for a Mayor:  "A Mayor Pro-Tem... if a vacancy occurs, shall perform the duties of Mayor until the next regular City or County election."  The County of Mason holds its elections in November of this year, as it has done on even election years for as long as I can remember, ergo the next regular (City or County) election in this case would definitely be this November. 

The third sentence of section 5.2 using the term 'regular election', must therefore mean at least the 'regular city or county elections' and should also include any 'regular state or national elections' if those were held and they differed from our local elections.  Otherwise, why wouldn't the crafters of that section call it a 'regular City election' instead of what they did put, 'regular election'. 

Both sections included above indicate that the charter's crafters wanted our elected officers to have a popular mandate that they can only achieve through being voted into office as early as possible.  Why else would they mandate that a special election be held if two elected officers vacate their offices in section 5.2:  "Multiple vacancies shall be filled by a special election."

But the City Officials Don't See it That Way

At the 1:10:20 mark of that meeting, City Attorney Wilson, who is not a citizen of the Fourth Ward, or of Ludington, or of even Mason County, made an admission:

Wilson:  "I would just like to advise the council that-- believe it or not-- I at one point was in agreement with Mr. Rotta on on length of the appointment.  However, I then remembered that the city council earlier this year had voted to change the dates of the regular city council elections from the odd numbered years to the even numbered years.  Therefore, Mr. Rotta, the next city council election, the regular city council election is in November 2016, it's not in 2014.

We have confirmed that understanding, and that interpretation from both the city charter and... I'll know you'll want to look it up... MCL 168.642(a)(4) with... Deb, did you confirm this with the State Election Commission?  (City Clerk Luskin nods)  Yes, we've confirmed that interpretation with the Michigan Election Commission, which is the final authority on all matters election in the city and the state of Michigan.

So I am forced to agree that the next city council... the next regular election in the City of Ludington is in November of 2016.  And that's only because we voted earlier this year to change the election from the odd numbered years to the even-numbered years.  Otherwise, Mr. Rotta would be correct here, and my initial impression would also have been correct. 

We're too early, too close to the November election for it to get on this year I believe. 

Luskin:  This is a state election here, it's not a city election.  

You got to love the nonverbals by Wilson and Shay that are caught on camera in the early parts of this, while Wilson creates this narrative against democracy and tries to justify it through the City Clerk, the city charter, state law, and Michigan Election Commission (MEC).  He should have believed his first impression, because it was right.  However, he did base its refutation on a red herring. 

The council's voting to change city elections from odd years to even years does not change the fact that November 2014 is the next regular election held in Ludington.  Every one of the six wards in town will have their polling place open featuring voting officials and people voting on local, state, and federal issues and candidates.  They are correct in that there are no regular city elections in 2014, or in 2015 due to the new ordinance, Wilson actually makes that distinction in his first paragraph speaking of regular city council elections, only changing it to the shorter (and erroneous) regular election nomenclature later in his speech.

Of course, he was technically wrong in saying that November 2016 was the next regular election even if we ignore the regular election this November.  The next regular city elections will be held in August  2016 (primary), and then November in 2016, so says the section of law he quoted. 

As for the time element, I go to a special election for a Michigan Representative of the 11th District held in 2012.  Republican incumbent Thad McCotter resigned due to a scandal on July 6, and on August 7 (the normal primary date) his party had the regular primary with an establishment write-in candidate Nancy Cassis entering with less than a month preparation from her retirement.  The election in November actually had both a special election for the remaining two months of McCotter's term and a regular election for the next two year term.  The Democrat won the special election, but gave up the seat in seven weeks to the Republican who won the general election.

When the City learned of Councilor Marrison's intentions, they had at least two and a half months to set up a special election that could have been held on the same day as the regular election in this November for cost concerns, and the primary could have been waived due to the city's non-partisan elections.  

Frankly, City Clerk Luskin could have and should have been working to get this on the ballot.  And there should be a good paper trail between the clerk and state election officials documenting the efforts to establish the legality of whatever course they wanted to take. 

The Paper Chase

Attorney Wilson and Clerk Luskin indicated she had contacted MEC election officials and received their replies that apparently interpreted our charter.  Seriously?  One thing State and County officials generally do not do is look at what city charters allow unless it directly violates state law.  Here, the City Clerk apparently asked them something about the recent change from odd to even election years and received some confirmation back about that.  But, as noted, the change actually meant nothing other than there would be no regular election (or regular city election) dates next year. 

So I asked the FOIA Coordinator and copied the clerk for "Any written record from state election officials to any of our officials declaring what our city charter meant when it used the term "regular election" and why the November 2014 election would not be our next "regular election"." 

I received this reply on Monday:  "Attached you will find my response to your request [Editor: that there were no such records].  Deb Luskin informed me that her contact with state election officials was on the phone.  There are no documents consistent with your request."

So here's what we have:  Some unnamed state election official allegedly told City Clerk Deb Luskin something over a phone conversation.  That official likely had no reference as to our city charter, the question might not even have been about how to define the term 'regular election' as it is used in our charter.  The conversation, of which there is absolutely no record of, is simply hearsay from an unacknowledged source allegedly from the MEC, over something that may or may not be in dispute between the city and me (such as that the next regular city election is not until 2016, thanks to the new ordinance). 

Over something as important as disenfranchising over 1000 people from the Fourth Ward for over two years, I would expect something a little more solid and official from our clerk, and from our other city officials.  

But let us not forget, these are the same people who disenfranchised a citizen for fourteen months, preventing him from attending open meetings or voting in two elections on the threat of arresting him for a misdemeanor.  Have they ever admitted that this was at all contradictory to the invocations they have at the top of their meetings, to their oaths of office, and to the ideals behind that flag they pledge allegiance to at each meeting?

 

Michael Krauch (left, taking the oath of office from Clerk Luskin), love him or leave him, will be an illegitimate representative of that ward after the November elections.  If the council defends his legitimacy they will be going against the charter once again.  Consider, if a Michigan congressional district can allow write-in candidacies for a special election in a month's time, surely our few hundred Fourth Ward ballots can allow the same for this contest.  There just has to be the will behind it to back the democracy involved.

[XLFD]

 A special thanks to Clerk Luskin for quickly answering a question I posed to her earlier today which was:  "...Could I get from you the Michigan Election Commission representative(s) that you have allegedly contacted, their title, when you contacted them by phone, and what exactly you discussed in regard to the issue?"

She responded:  "I spoke with Brad Whitman of the Bureau of Elections back in 2009 on a very similar issue."

I present a meeting from 2011 where they were congratulating Brad Whitman on his retirement from the Bureau (also mentioned here ).   If we look at the law that City Attorney Wilson mentioned (MCL 168.642a) it has been amended since 2009 by Act 182 of 2010, Act 222 of 2010, Act 233 of 2011 and Act 523 of 2013. 

So... in disenfranchising the 1400 folks of the Fourth Ward, we are relying on a 5 year old conversation between a since-retired election official and our city clerk discussing a similar issue involving a section of  law that has been changed four times since that conversation.  Recall also that in 2009 there were no city officials that vacated their offices and no talk of moving the elections from odd to even years among city officials. 

I remember my own conversation with Clerk Luskin in April 2013 when I picked up some materials for a possible run for mayor, that the issue of changing election years from odds to evens was just being looked into.  That City Attorney Wilson would use this to assert his original impression (i.e. that he was in agreement with me-- believe it or not) was wrong is highly suspect.  A knowledgeable and professional attorney like Wilson purports to be would not change his view of a strict interpretation of law on a clerk telling him hearsay information to the contrary from her memory of a phone conversation of five years ago.  Particularly, when the 'disproving law' had changed dramatically four times since, and is effectively a red herring to boot, as to how to interpret the charter's meaning.

Clerk Luskin also mentioned (in answer to a peripheral question) that she is for keeping the clerk and treasurer as elective offices.

[AQUAMAN]

Well well well, this is quite intriguing to say the least! It should be obvious to anyone now, that CA Wilson is trying to drag our good and honest Clerk Luskin into his web of deception and now, conspiracy. That pc is 5 years old, and has no bearing on today's information for questionable election facts and law. Absolutely great find X, you are better than Columbo in uncovering this important info., thanks. And let's not forget to bring this up too at the next CC mtg., which I'm sure is another snafu that the CA didn't envision anyone following up on. Incredible Manistee trick-shot artist. 

[XLFD]

Alright, I bothered you enough for today, have a good night...

And, um, just one more thing...

There is still enough time to stop the disenfranchisement of our friends in the Fourth Ward, but it will take our City Clerk, working with the County Clerk and state election officials, taking action on the issue to get this on the Fourth Ward ballots for the next regular election.  Otherwise, it will be a dereliction of her duties to the people of Ludington and the charter. 

An appointed city clerk would just follow orders of the City Manager and City Council; if Ms. Luskin wants to show why the people need an elected city clerk, she needs to independently perform this duty, even if the rest of the city hallers are against it.

[XLFD]

And look here, down in Wayland, a place we have visited before, their school district just accepted three more write-in candidates for the November election, and will accept even more write-ins until October 22. 

"The number of candidates for open seats on the Wayland Board of Education has increased to four, with three who will appear as write-ins for the Nov. 4 general election... 
They will join Toni Ordway, who was the only candidate who filed for a four-year seat in time to meet the July 22 deadline. Ordway at that time was the only declared candidate for three open seats that expire at the end of this year...

Anyone else interested in running must file a write-in candidacy with the Allegan County Clerk by Oct. 24."

Clerk Luskin only has to get the council position listed on the Fourth Ward ballots, in three weeks time, Krauch and Stubbs and any other eligible person can get themselves recognized as write-in candidates, and we can still have democracy in our town and abide by the plain wording of our city charter.

[Willy]

Excellent job of investigative reporting X. We have to wonder what the Council, Mayor and Manager are up to. Another concern is when did Wilson have that conversation with the City Clerk regarding the ballot question and did he get the same information you received.

[XLFD]

Thanks, Willy.  In reviewing Attorney Wilson's words, he was obviously engaged in some legal legerdemain-- a shell game using laws.  He advises us that he once believed the charter law was the overriding authority, but then introduces the city ordinance and the state law about changing election years which has no relevance to the debate, because November of 2014 was never a regular city election regardless.  But it has always been a regular election for the county, state and federal agencies.  He then further introduces officials that supposedly agree with him, even though one is long retired and the other has not likely ever had the conversation with him over the true point.  This allows the actual authority on the issue, our charter provisions, to remain hidden from view to the unwary.

This is the same foolishness City Attorney Wilson and current Manistee/Benzie County Judicial candidate George V. Saylor tried to use to avoid paying our costs in our FOIA lawsuit we prevailed in at the Michigan Appeals Court by claiming they only owed us for some of the 'court costs'.  Fortunately, I don't think the appeals' court judges are unwary.