Candidates with felonies to remain on elections list

City attorney opines that state constitution trumps Warren charter’s provision of ‘blanket ineligibility’

By: Brian Louwers | Warren Weekly | Published May 13, 2019

WARREN — They were on the list of candidates for the primary election when they filed to run for office ahead of the April 23 deadline. Then they were off the list amid legal questions about whether candidates with felony records can run for city office in the first place, according to a provision of the Warren charter.

In the end, mayoral candidates Lawrence Behr and Douglas Chastney, and Jerry Bell, running for a seat representing District 5 on the Warren City Council, were included on the list forwarded to Macomb County elections officials following an opinion by Warren’s city attorney.

All three men were reportedly notified by letters mailed from the City Clerk’s Office in late April that their candidate affidavits were “invalid.” The letters cited an investigation by City Attorney Ethan Vinson, and according to the letter, the inquiry was made “due to a recent request … to investigate candidates for felony dispositions.” The letter further stated that all candidate applications were reviewed by the Warren Police Department.

Behr said he got tangled up in a situation with an ex-girlfriend that resulted in an arrest and a felony conviction for receiving and concealing stolen property — an outboard marine motor that he maintains to this day he was given a receipt for — way back in 1987.

“I was convicted of something I had no knowledge of and I paid the price,” Behr said. “I’m a good man, and what I did in my past has nothing to do with me leading the city into prosperity and into the future.”

Chastney said he didn’t know he might be excluded until he got a call from a reporter on April 29, the day of the deadline for candidates to withdraw. His brush with the law happened in 2016 and left him with a felony conviction for carrying a concealed weapon.

“There wasn’t even a round in the chamber,” Chastney said. “It was a nonviolent crime. No one got hurt, except for me.”

Bell has been eyeing a run for the Warren City Council for a while. He said he’s been trying for a year and a half to get clarity about how a distant felony on his record would affect his candidacy. His crime: breaking into a motor vehicle at Oakland Mall in 1999.

“I knew what I was involved in. I know what I did. I took responsibility,” Bell said.

Their apparent temporary exclusion ran parallel to that of a fourth candidate, Macomb County Commissioner Andrew Duzyj. Vinson  previously opined that the Warren charter precluded holders of offices at the county and school district levels from seeking elective city posts.

Vinson later changed course when it became clear that the provision was not followed historically. Former Mayor Mark Steenbergh ran for mayor in 1991 while he served on the Macomb County Board of Commissioners. He won the mayoral election in 1995, when he chaired the board, and resigned from his county position before taking office in Warren.

Vinson’s opinion on the felony issue was conveyed in a letter to City Clerk Sonja Buffa dated May 6. He opened the letter by declaring, “This correspondence is provided to confirm and elaborate upon my verbal opinion regarding the eligibility of persons with prior felony convictions to seek an elected city office.”

While the Warren charter deems any person with a felony conviction ineligible for any city office, Vinson said the provision “does not state a time limitation nor include any types of crimes that relate to the public office.”

He added, “When reviewing the eligibility of convicted felons, we should rely upon more current constitutional or statutory provisions and case law rather than the city charter.”

Vinson cited an amendment to the Michigan Constitution in 2010 that outlined standards for people with felony convictions “for dishonesty, deceit, fraud or breach of public trust.” Conviction of such crimes at the felony level, if “related to the person’s official capacity while the person was holding any elective office or position of employment in local, state or federal government,” disqualifies any holder of a state or local elective office “that is policymaking or that has discretionary authority over public assets” if the conviction was within the last 20 years.

Vinson also cited Michigan law that he opined renders “a felon unfit to enter office rather than to seek office.” In such cases, the elected officeholder would be subject to potential “quo warranto” action in the proper state court venue to remove them.

The opinion touched on relevant case law that Vinson said “disfavored general bar-to-office provision as void against public policy.” He said the court acknowledged “state laws that restrict felons from office, and reasoned that the laws should have a nexus between the types of crime and the public office,” and that the court “distinguished the laws as not excluding every person convicted of a crime from public office, but allows voters to determine whether commission of crimes unrelated to public office renders a person unfit for public service.”

Vinson concluded, “The overwhelming majority of materials I reviewed would support the position that a blanket ineligibility of any felon as currently stated in city charter Section 4.3(b) would likely not withstand judicial scrutiny. The charter provision restricts felons from office, without any regard to the offense and the nature of public duty.”

He said such restrictions would be more appropriately reviewed under guidelines of the state constitution.

“Accordingly, any candidate for a city office that has a prior felony would not be excluded from eligibility for seeking office,” Vinson said.

Bell still isn’t convinced that he’s in the clear. Given the amount of prior legal debate on the matter, he said he’s still concerned about quo warranto attempt to oust such candidates should they win election. He said he’d fight that, but wondered why he should have to.

“I just knew this was going to happen,” Bell said. “Why would we want to sue the very same city that we’re trying to represent?”

Warren’s primary election will take place on Aug. 6.