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Recall Petition Language Against Scottville Mayor Marcy Spencer Approved by Election Commission
A well-attended clarity hearing for a recall petition on Scottville Mayor Marcy Spencer had a good result for those who want ethical conduct and accountability back in Scottville city government: the language of the petition was approved by the county's Election Commission. This commission, comprised of Probate Judge Jeff Nellis, County Treasurer Andrew Kmetz and County Clerk Cheryl Kelly (who was unable to attend and was lawfully designated to Deputy Clerk Lori Holmes), weighed the language used by petitioner, Eric Thue, Scottville citizen and former councilor, and the testimony given by both sides and two decided to approve it.
From left to right: Spencer (covering Alvarado's face, Thue, court staff, Judge Nellis. Photo from LDN
Spencer has made indications that she plans to appeal the decision to the 51st Circuit Court. Her appeal must come within the next ten days, where a determination must be made within 40 days as to whether the petition is clear and factual. It is unclear whether she will use the same counsel she used at both clarity hearings, former Scottville City Attorney Carlos Alvarado, but Thue has the option of using the prosecuting attorney.
This was round two; the first time around, Thue failed to convince Nellis and Kmetz that Spencer's improper selection as commissioner is an event that happened in her current term, and rejected the petition. Only Kelly found it acceptable language, so the language was rejected. Thue vowed to be back and correct the language. This time Nellis and Kmetz would find the petition both factual and clear, and the deputy clerk rejected it, being hung up on the clarity of the clause introducing the problem.
She read that language after Nellis introduced the process: “Continuing a meeting policy began in 2021 with her as mayor, Spencer chaired meetings of the Scottville City Commission up to March 2023, violating procedures defined by the city charter that allowed for public comments before general business of the meeting. During this time, Spencer silenced the public from speaking until all business had been conducted.”
The crowd featured more supporters for both parties than the first meeting, but Thue partisans outnumbered Spencer backers. Thue would be allowed an opening comment and he was prepared to give one, a collaborative effort that I was proud to have assisted him with, where he developed the reasoning behind his petition and its language. It follows in its entirety:
Eric Thue, petitioner: "I want to thank the Election Commission for convening once more to hold this clarity hearing. I have pared down the petition to focus on just one of the three things I introduced the first time around. For background, in early 2021, Mayor Marcy Spencer, with full approval of then-City Attorney Carlos Alvarado, shredded the Scottville City Charter and has continued along that path ever since.
The people of Scottville who adopted the charter, put in a section that described in exact terms the procedure of city commission meetings. Since the charter was crafted, Scottville mayors of the past, including Clayton Spencer, the respondent's father, dutifully, and with honor, followed this procedure, which permitted the 'hearing of the citizens' to occur before any reports were received and any business was conducted by the commission.
Respondent, without a vote by the people to change the charter, decided to move public comment to the end of the meeting, right before adjournment. At the last hearing, Attorney Alvarado tried to tell us all that we don't understand the word "procedure". It is he who does not understand the word and the context of this word in the Scottville charter. A procedure is commonly understood and defined by dictionaries as "a series of actions conducted in a certain order or manner."
I am a modest painter, not a lawyer, but I understand that when I paint a room I don't paint it first and then use masking tape afterwards, nor would I consider throwing a coat of paint on the walls and then overcoating it with primer. This is ridiculous, and so is putting public comment at the very end of the meeting, when the people's charter insists that it belongs near the beginning, so that the people can communicate their concerns to their elected representatives and so those representatives can use that input when they consider the business of the city.
Respondent continued this unpopular policy until she was voted out of office in November 2022 and it still continued after she was appointed commissioner by a fractured and ethically compromised commission 43 days after the vacancy had been created, once again shredding the charter's dictates on filling vacancies. The next meeting she was selected as mayor.
In this term, she kept the charter-breaking policy of keeping the public silent until the end of the meeting, before subtly, on the fourth meeting after she was reappointed mayor, and without any discussion or consent of the commission, she put public comment back at the beginning of meetings, but with a restriction. The public could only speak on agenda items. The people of Scottville didn't approve a charter that had restrictions on their freedom of speech; for someone who has sworn two oaths of office since Christmas, this violation of the federal and state constitutions is inexcusable.
As a recent Scottville commissioner, I took my oath seriously. I was troubled by a power structure that I witnessed and policies that were dishonorably crafted in order to silence the public and silence healthy debate. The troubles in Scottville have manifested themselves this year alone, with five commissioners resigning. But the respondent believes her actions in total repugnance to the city charter and the Constitutions she swears to uphold is not part of the problem.
The claim in this petition is only the tip of the iceberg, but if this honorable panel does not approve the language and offer the citizens to have their say at the ballot box since their voices are stifled at meetings, I fear that Scottville may face the same fate as the Titanic."
Shortly after Thue started his statement, Rob Alway, interposed himself almost between the commission and Thue, then moved around for about five seconds before taking a picture, disrupting the decorum of the meeting, but not interrupting the comment. This rude interposition was highlighted later in the meeting when he dropped any vestige of being a journalist by casting aspersions against Thue and his motives when the panel gave those present a chance to speak.
But before that, Attorney Alvarado would defend his client by first stating that the county clerk acted inappropriately by notifying Spencer about the petition by email and cc-ing the media at the same time. When one looks at the controlling statute, there is no legal basis for this claim. It says in relevant part: "The board of county election commissioners shall notify the officer whose recall is sought of each reason stated in the recall petition and of the date of the [clarity] meeting". There is no basis for his objection, this is a political process on a public official open to the public and so this objection was really unfounded and made Spencer and her representation look like imperialists.
One thing the statute doesn't suggest is that either party could be represented by counsel at clarity hearings. Section five says: "The officer whose recall is sought and the sponsors of the recall petition may appear at the meeting and present arguments on whether each reason is factual and of sufficient clarity." Spencer said nothing throughout both hearings.
Spencer's lawyer would rely on two basic defenses, one was to try to paint the language as unclear opinion and related to actions not performed by Spencer and the other was the actions were not committed this term. Nellis and Kmetz would listen to the disorganized presentation and asked questions to the attorney about their application, but Alvarado couldn't adequately explain why the objective moving of a comment period from the beginning to the end of a meeting wasn't objective reality, nor could he explain away why the policy wasn't ongoing into this term.
One thing Alvarado insinuated, and this would be echoed by Alway later, was that Eric Thue was being manipulated into this action by an external party, and indicated through his words and gestures that the puppet master was the person sitting behind Thue (aka XLFD). This is compelling, but untrue.
Thue and others have been talking recall since January, while I was adamant on the quo warranto process being the proper remedy for the two intruders into office and a quicker cure. But that ran into problems with the local judge, and so recall, which couldn't be tried until June, became an option, and Thue took that on with support from me and others. Even if I had Svengali powers, I would not force another person into the burden Thue has put upon himself, for the betterment of Scottville.
Ironically enough, when the hearing had a comment period before the commission made a final decision, three people spoke. I went first, I had to correct Carlos Alvarado's assertion that the decision to move public comment had been made by the commission by a vote. The records indicate that I had questioned why the comment period was moved in the first meeting of April 2021 and was told that the mayor had made that decision.
The next meeting, a resolution was put in the consent agenda, giving the mayor a new power, to adjust the meeting procedures as she/he saw fit, this was written by City Attorney Carlos Alvarado, whose legal expertise in city affairs has him thinking that he can amend the charter and add powers to the mayor by putting a resolution in a consent agenda, when that can only be done by a vote of the people of Scottville.
I also made clear that it should be a matter of honor for Spencer and the rest of the commission to give up a seat that she has never legally held without having to go through a process like this and save us all a lot of money and time. I emphasized that it was in the mayor's power for two years of the previous term and the first part of this term to correct the issue of public comment.
Rob Alway rose with an attitude, taking issue with my involvement as an outsider, and calling Thue to task for having a copy of the city charter in a book likely bound in the 1960s and mostly out of date, telling the crowd that he would be contacting the sheriff about this 'theft'. He threatened that he would be taking out a recall petition on Thue should he win office in November (Thue has took out a petition for an open spot for a one-year term. Since one cannot be recalled in the first or last six months of a term, he would be immune from this baseless harassment). He offered legal opinions that weren't adequately supported, echoing some of his legal opinions and conclusions here.
Former Commissioner Alway came off as a caricature, and likely assured Thue's victory. Current Commissioner Darcy Copenhaver followed with a brief statement saying that she objected to me calling the commission dishonorable (technically, I just instructed what they would do if they were honorable). Copenhaver supplied a second bit of irony with this statement, as she and Commissioner Seiter missed two meetings in November 2022 to deny city business would take place then as they purposefully and dishonorably denied the commission a quorum (according to several credible sources).
With Judge Nellis' reasoned opinions of the matter on the record, Treasurer Kmetz's surprisingly insightful line of questioning on Alvarado, and Deputy Clerk Holmes' unclear objection to the opening clause of the petition, a successful appeal does not look good for Spencer.
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