In many ways, 2021 was the year of recall elections throughout the country, though not for the reasons that many may think. The California Gubernatorial recall was one of the big political stories of the year, but the many recalls against school board members were also in the news. But we saw some surprising developments as I discuss in this op-ed in The Hill.
This year saw the most recalls attempted since this blog started in 2011 -- at least 609 attempts. But unlike most years, when the recall gets to the ballot about one-quarter to one-third of the time, this year, most of the recalls went nowhere. Only 66 went to the ballot and 17 others resigned.
Even more unusual, for the first time more officials survived the vote than lost. Most recalls result in removal -- about 60% of the time (plus 6% resignations). This year, 40 officials survived the vote and only 26 were removed.
What explains this odd result? COVID and the laws designed to stop its spread. Most of the school board recalls were over COVID precautions. But few of them got to the ballot. And those that did failed. Only one of the apparently COVID-focused recalls (in Dodge County, Wisconsin) resulted in removal.
This actually fits well with the goals of the recall. The pandemic resulted in arguably the most extensive changes for every citizen's lives in US history. It's no surprise that there would be a political impact. But the results, as can be seen by both the failure to get signatures and failure to actually win elections, maybe viewed as effectively an endorsement of the restrictions.
As a comparison, 2020 saw 42 removals, 24 survived and 14 resignations, with 434 attempts. In 2019, 87 officials faced a recall vote (37 removals, 16 resignations, 34 survived). In 2018 (which I never published) saw 150 recalls make the ballot or lead to a resignation, with 85 removals, 28 resignations and 37 survivals. In 2017, we had 102 recalls, 2016, we have 119 recalls. In 2015, there were 109; 2014 (which, I never actually wrote up), 126 recalls. In 2013, we had 107 recalls. 2012 we had 166, and a 2011 we had 151 (the numbers do not always exactly match up to the links – I checked back and found additional recalls and removed a few).
The COVID recalls are tapering off, but we have plenty more awaiting us. Not only will the San Francisco District Attorney and San Francisco School Board have recalls, there are others as well. January 11 will see recalls in both Leyton and Waverly, Nebraska.
Mr. Spivak, I'm seeking your off-the-record thoughts about an attempt to recall two members of Regional School Unit 21, charged w/ providing education in the towns of Kennebunk, Kennebunkport, and Arundel, Maine. To be upfront about my position re: this recall effort, I'm a long-retired former NY, CT, and DC attorney, never licensed in Maine, allied with a group of local residents opposing this recall effort. After reading your Opinion piece published in the Bangor Daily News dated 5/4/2017, we'd love your thoughts re: strategies for opposing this recall effort, which is tearing apart our community, is posed to cost Kennebunk's taxpayers a large sum of money as they pay attorneys fees for BOTH sides of a lawsuit seeking to enjoin the recall election, and is, according to public statements by the recall leader, designed to serve as an opening shot in a campaign to oust the Superintendent who was hired at the beginning of the Fall 2020 school year for supposedly being "unfit for the job". She happens to be the only Black superintendent in Maine who, in the view of every single member of the School Board (conservatives included), is doing an exemplary job in the midst of an unprecendented pandemic. One of the two school board members whose recall is sought is the only member of the School Board who's openly gay.
ReplyDeleteI'm seeking your thoughts re: 3 issues: (1) whether state statute re: RSU vacancies supersedes local charter language permitting the recall of "elected officials;" (2) whether the statements in the "affidavit" initiating a recall are required to be truthful or at least not contrary to the public record; and (3) what law governs the counting of "days" for purposes of satisfying the recall provision deadlines when the term "days" isn't defined in the Charter.
I realize I'm asking a lot of you. But I had a second career as a teacher, after taking a break from law to raise my daughters, and I'm deeply concerned about the welfare of our local school kids during this pandemic. They've experienced learning deficits and need teachers and administration focused on their learning -- not a district in uproar. My phone # is 202/538-2303 if it's easier to phone than email me. If you prefer email, my address is claudsayre@gmail.com. Our next Select Board meeting is this coming Tuesday, and the School Board has authorized their attorney to file an injunction request this past Monday, so time to head off an expensive, divisive lawsuit is short.
Thank you so much for considering my request. :) All the best, Claudia
I ran out of space in my prior Comment, so I omitted part of my intended Comment. I'm attaching the info I omitted below. I hope this isn't too confusing.
ReplyDelete"The first issue, re: the governing law is tricky because the elected officials whose recall is being sought, are residents of a single municipality, Kennebunk, whose Board oversees a residential school unit safeguarding the education of children from 3 towns (not just Kennebunk). The language in the charter of each of our 3 towns re: recalls is different. I've read the 10 pg., carefully-researched opinion letter of the School Board's attorney stating he's prepared to argue in state court that the state's specific statutory scheme, governing RSU's in general and the vacancy of RSU school board members in particular, overrides the ability of a single municipality to recall those school board members under the recall language in its charter permitting the recall of "elected officials." According to the SB's attorney, Maine courts haven't addressed this issue before. Are you aware of how courts have dealt with this issue in other states?
With regard to issue (2), I'm struggling to understand how the Kennebunk charter's recall provision should be characterized using the designations you apply in your Bangor newspaper article, ie, "political recall" laws versus "malfeasance" or "judicial" recall standards. The charter's description of the situation in which "recall is intended to be used" is certainly broad: it contemplates a situation when "in the opinion of the number of voters hereinafter specified, an elected official, acting as such, has caused a loss of confidence in that official's judgment or ability to perform the duties and responsibilities of the office." However, the charter requires that the recall process be initiated by an "affidavit" containing "a statement of specific facts to support the grounds of the recall." The statement of specific facts contained in the Kennebunk recall affidavit contains numbers of employees and dollars spent that are wildly factually inaccurate according to the publicly-available records and make assertions about the impact of Board member decisions that are legally inaccurate. Arguably, when a charter requires the basis of a recall be set out in an "affidavit", the statements in that affidavit can't contain perjury -- even where a recall standard is broad. What have you seen in the caselaw of any state re: this issue?
Finally, with regard to how "days" should be counted for purposes of the Charter recall deadlines, where the Charter is silent on the meaning of "days" or how time periods should be calculated for any purpose, the Town Select Board's attorney advised our municipally-employed Town Clerk to allow an 11th hour, one-day extension of the time period required to obtain recall signatures. Apparently the town attorney didn't issue a written legal opinion to the Clerk setting out the legal basis for her advice, which our town manager directed our town clerk to follow. However, the recall supporters Facebook page claims the attorneys decision was based on the meaning of "days" set out in the Maine rules of civil procedure. That strikes me as unusual. The Charter doesn't contain a provision incorporating the terms of any state statute in a situation where the Charter is silent. Have you ever come across caselaw incorporating the provisions of the rules of civil procedure where a municipal charter is silent on an issue of procedure? There doesn't appear to be any legislative history re: the Charter drafter's intent w/ respect to the calculation of "days"."