The Washtenaw County board of election commissioners has voted to reject the proposed ballot language to recall six of the seven trustees on the Ann Arbor Public Schools board of education. The action took place at an Aug. 1, 2013 hearing in the county boardroom in downtown Ann Arbor.
The election commissioners are Donald E. Shelton, chief judge of the Washtenaw County Trial Court; Larry Kestenbaum, county clerk/register of deeds; and Catherine McClary, county treasurer. They cited a lack of sufficient clarity in the language as the reason for their decision.
On July 17, 2013 Jody Huhn – a parent with children in the AAPS system – submitted language to recall six trustees: Simone Lightfoot, Susan Baskett, Irene Patalan, Glenn Nelson, Andy Thomas, and Christine Stead. Patalan and Nelson did not attend the hearing. Three of the four trustees who did attend – Baskett, Thomas and Stead – addressed the commissioners, arguing that the recall language was not clear and not factual.
In documents submitted to the Washtenaw County director of elections, Huhn cited four reasons for this recall [.pdf of recall petition language]:
(1) failure to demonstrate thoughtful consideration of constituent priorities; (2) failure to demonstrate transparency in decision-making; (3) failure to demonstrate cohesive and singular direction as evidenced by consistent split voting; (4) failure to provide sufficient backing and support for district superintendent position as evidenced by high turnover rate averaging 2.25 years per term.
Board president Deb Mexicotte was not included because state election law prohibits the filing of a recall petition against elected officials who are in the first year of their term, if that term is longer than two years. Nor can such officials be recalled in the final year of their term, for terms longer than two years. Mexicotte was re-elected to a four-year term in November 2012, for the only AAPS trustee position on that ballot – so she is still serving the first year of her current term. This particular recall constraint was part of broader amendments in state election law Act 417 of 2012. [.pdf of Act 417 of 2012]
Related to item (4) in the proposed ballot language, the most recent AAPS superintendent, Patricia Green, turned in her resignation in early April after a little less than two years on the job. Her resignation took effect in mid-July.
Huhn had supported Ben Edmondson for the superintendent’s position. Edmonson, principal at district’s Roberto Clemente Student Development Center, had been one of six semi-finalists selected by the AAPS board in its current superintendent search, but was not picked as one of the two finalists. Those two finalists – Brian Osborne and Jeanice Kerr Swift – were not internal candidates. Last month the board offered the job to Osborne, but he ultimately rejected the offer. Earlier this week, the board made an offer to Swift, who has agreed to enter into contract negotiations.
Huhn attended the recall language hearing, but declined to address the board.
Initial steps of a recall require that ballot language be deemed clear and factual by the board of election commissioners in the jurisdiction of the elected officials who are the target of the recall. Clarity is defined in terms of the ability of the officer whose recall is being sought and for electors to identify the course of conduct that is the basis for the recall.
The requirement that the language be factual was added to the legislation as an amendment to Act 417 of 2012. Early in the morning of Aug. 1, Kestenbaum sent an email to the other two election commissioners – Shelton and McClary – stating that he does not believe the factual-standard requirement is constitutional. [.pdf of Kestenbaum's Aug. 1, 2013 email]
In his email, Kestenbaum argued that the factual-standard requirement is unconstitutional by citing the following passage of the Michigan constitution, and calling out the final sentence for emphasis:
Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.
Kestenbaum concluded that: “The sufficiency of reasons for recall is a political question. It is specifically not a judicial question. If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.”
In his email, Kestenbaum stated that during the review of the proposed ballot language for the AAPS trustees, he would apply the standard of clarity. That’s the other part of the standard, which was also part of the law before Act 417 of 2012 was passed.
At the Aug. 1 hearing, commissioners decided to address the issue of clarity first, and if the language were deemed to be clear, they would then move on to discuss the issue of factuality. After brief deliberations, the three commissioners voted unanimously that the recall language in all six petitions – which contained identical wording – lacked sufficient clarity.
McClary made a motion to address the issue of factuality, stating that the recall language did not appear to be factual. Her motion died for lack of a second. Shelton and Kestenbaum indicated that there was no need to deliberate on that issue, since the question of clarity had already been determined and the law requires that the language must be both clear and factual.
This brief was filed from the boardroom of the county administration building. A more detailed report will follow: [link]