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December 5, 2012

Judge will decide if Troy will hold special mayoral election

By Terry Oparka
C & G Staff Writer

It will be up to a judge to decide if the city of Troy will hold a special election Feb. 26 to fill the office of mayor, vacated by Janice Daniels after voters recalled her from office Nov. 6.

Secretary of State Ruth Johnson, with support from state Attorney General Bill Schuette, filed a lawsuit against the city Nov. 30, asking a judge to issue an injunction forcing the city to hold a special election in February and accept the applications of residents Dan Brake and Planning Commissioner Ed Kempen as candidates for mayor.

Brake and Kempen were turned away from the Troy City Clerk’s office when they attempted to file to run for the office on Nov 26. 

Kempen said that he believed the state law should prevail, and the city was stuck in administrative procedure. “Recalls are authorized under the same state law,” he said. “It seems to me the city is acting in absence of the law. It’s my expectation that the state law will be upheld.”

Brake said he began to look into the law before it became a public issue. “It seemed pretty clear. I’m betting with the state and chose to file.”

However, Troy City Clerk Aileen Bittner said that the City Clerk’s office does not have paperwork for Kempen or Brake. She said she believed the paperwork was left in the hallway and a custodian tried to return the paperwork to Brake, who refused to take it back. “We don’t have it,” she said.  In a Nov. 30 statement released by Johnson and Schuette, Johnson said, “I am disappointed that city officials have chosen to go this route. Unfortunately, we must now seek a legal remedy to uphold state election and recall law. Our position all along has been that state law requires an election in this situation.”

Schuette said he was fully supportive of Johnson and agreed that the law is straightforward. “A February election is required,” he said.

A hearing on the case is set for Dec. 12. The estimated cost of a special election is $50,000.

“What the state wants for us is to ignore our charter,” Troy City Attorney Lori Grigg Bluhm said. “I am not in any way saying that the city charter trumps state law,” she said. She said that the city outlined the procedure with Oakland County in September because of the conflict between the state statutes and city charter.

She noted that the state is not seeking to have the recall election invalidated. “That would not occur and that would not be something the Secretary of State should ask for or would ask for,” she said.

Before the lawsuit was filed Nov. 30, Bluhm responded to Schuette’s office earlier that day, stating that the 15-day deadline  — from when the office of mayor was declared vacated Nov. 9 — had expired, and although Thomas had extended the candidate filing deadline until 4 p.m. Dec. 4, the Secretary of State had not provided any authority that would insulate the city from liability.

“We are concerned that we are not fulfilling our responsibility in providing fair and accessible elections, since our citizens have not yet been notified that there is an opportunity to run for elective office. If a lawsuit is filed today, as threatened, then there would not be enough time for all interested candidates to participate in the process,” Bluhm said in her letter. 

The council appointed Dane Slater as mayor in a 4-to-2 vote at the Nov. 26 meeting, after he resigned his seat on the council, saying he believed the city attorney could defend the position of waiting until November to hold the mayoral election. Mayor Pro Tem Wade Fleming and Councilman Doug Tietz opposed the appointment. Tietz advocated waiting until the Dec. 3 meeting to fill the seat.

Meanwhile, Highland Park resident and political watchdog Robert Davis, filing as Citizens United Against Corrupt Government, filed a lawsuit Nov. 29 against the city of Troy, City Council, City Clerk, City Attorney, Michigan Secretary of State and Thomas. The lawsuit asks a judge for a writ compelling the city follow the state directive to hold a special election Feb. 26, 2013, to fill the office of mayor.   He asks that the city clerk, city attorney, and each member of City Council be fined up to $250. 

“We were pleased to see it,” Davis’ attorney Andrew Paterson said of the Nov. 29 letter from Schuette’s office to the city of Troy. “It spells out our complaint.”

A hearing on Davis’ case is set for Dec. 13. Davis also filed suit against the city of Troy this past summer, stating that the council’s deliberation behind closed doors to winnow the 54 applicants for the vacant Troy city manager position to five candidates violated the Open Meetings Act. Oakland County Circuit Judge Colleen O’Brien ruled that the record indicated that the city did not act in bad faith and ruled in the city’s favor on that case Nov. 21. 

The Troy City Council received 41 applications from Troy residents seeking consideration for the vacant City Council seat. The council was scheduled to review the applications at a study session following the Dec. 3 council meeting and interview finalists at the Dec. 17 meeting.

Bluhm said that the City Clerk is not currently authorized to accept any filings for the office of mayor for a February election.


Timeline of events:

November 6
Voters recalled Mayor Janice Daniels by 1,770 votes, or 52.2 percent.

November 9
The Oakland County Elections Division declared the office of mayor vacated.

November 16
State Director of Elections Christopher Thomas sent a letter to City Attorney Lori Grigg Bluhm stating that the mayoral seat should be filled by a special election Feb. 26.

November 19
Joe Rozell, director of elections for Oakland County, sent Troy City Clerk Aileen Bittner a letter informing her that, in accordance with state law, the city was required to give notice of an election for mayor but did not specify when that election should be.

November 27
In a letter to Thomas, Bluhm said that mandating a February special election “actually thwarts the voters’ exercise of their constitutional right of recall, since the city is required to comply with its charter provisions, as well as state law.” Further, Bluhm said that, under the Troy city charter, vacancies in elected office are required to be filled within 30 days through appointment. “Requiring the city to now conduct a special election in February will deprive many of our residents of the ability to participate in the political process. This will place the city of Troy at risk for an equal protection challenge.”

November 29
State Attorney General Bill Schuette, in a letter to Bluhm, stated that “it is the position of this office that a special election should have been called for February of 2013 to fill the remainder of the unexpired term following the recent successful recall of former Mayor Janice Daniels.” Further, it said that the city’s intent to hold the election in November 2013 is based on a “misreading of Michigan Election Law.” “We are asking you to reconsider the advice you provided before litigation is commenced to resolve the matter,” Schuette’s attorney, Richard Bandstra, said.

You can reach C & G Staff Writer Terry Oparka at toparka@candgnews.com or at (586)498-1054.