Legal opinion issued on Director recall rules

story by Aric Mitchell
amitchell@thecitywire.com

Fort Smith Attorney Wyman Wade weighed in on Monday (Dec. 31) regarding the rules for a potential recall on Ward 1 Director-elect Keith Lau, who takes office Tuesday (Jan. 1).

The key findings: a recall could not be enacted until Lau has served six months; Ward 1 voter registrants would be the only ones deemed eligible for signing the petition of recall; and it would take about 2,000 of them to succeed.

Fort Smith citizen Cheryl Gilmore had previously indicated she would orchestrate a recall of Lau for allegedly speaking to Directors Andre Good and Kevin Settle in a non-public venue about repealing a controversial amendment (authored by Director Philip Merry) to the city’s animal control ordinance.

The ordinance was passed by a 4-3 vote during the last scheduled meeting of 2012 (Dec. 18) as well as two special meetings pushed through before the board configuration changes in January.

“Even though it was 90 minutes to read the ordinance, the (Dec. 18) meeting was still in session (when the alleged statements were made), and directors should still be under constraints. Him saying that in a public place implied he would do that in the future as well,” Gilmore said.

Gilmore’s initial understanding of what it would take to enact a recall was based on the idea she would need only 237 signatures. But as Wade’s letter dated Dec. 28 states, “should there be a recall petition effort for the removal of the soon to be sworn ward 1 director, the required number of signatures on such petition must be determined based on the total number of votes cast for all candidates for that office at the preceding general municipal election at which the office was on the ballot, i.e., in the current case, that would be 1996.”

As a result, Gilmore would need 2,048 valid signatures to successfully accomplish the recall and, the letter continued: “We believe that it is significant that A.C.A. § 14-48-114, which provides for removal by recall of a ward director, specifically states that the ward director ‘shall be subject to removal…by the electors qualified to vote for a successor of the incumbent,’” which Wade attests “should be interpreted to mean that the ‘process’ of recall, including the initial petition and the subsequent election, is to involve only those ‘electors qualified to vote for a successor of the incumbent’” — presumably Ward 1 voter registrants.

LEGAL ACTION
Lau said Monday he believed “it’s going to be pretty hard to get those signatures, especially getting more than 2,000 votes from Ward 1, but I welcome it if that’s what she feels, because I value First Amendment rights.”

“I’m just ready for the city to move on. We’ve got bigger issues we need to focus on like jobs and economic development.”

Lau cautioned Gilmore on Monday that while he respected her right to pursue a recall, he did not believe Gilmore had “a right to libel or slander my name or character as part of that effort.”

“I want to make perfectly clear if you (Gilmore) and/or your supporters make any untrue statements pertaining to my character, family or business dealings, I will take legal action against you and all parties involved,” Lau said in an email to Gilmore. “During my campaign several untrue negative statements about my character, family life and business dealings were made. In the past you have made statements or taken positions which did not prove to be accurate. ... I would encourage you to seek legal counsel and thoroughly research any statements before you cause us both to engage in a very costly legal course of action.”

GILMORE RESPONSE
In light of Wade’s confirmation that the recall effort will be more of an uphill battle than she initially thought, Gilmore told The City Wire she would keep her options open.

“I’m going to do some research on the code. We’ve got time on this to take a look at it and get an interpretation from someone outside the city’s attorneys. If I feel it is still worth pursuing, then I will.”

Gilmore continued: “If he’s a good director, I wouldn’t have any reason to recall him, but the proof is in the pudding. I’ll give him every opportunity to prove me wrong, and would love for him to prove me wrong.”

Responding directly to Lau’s warning of potential legal action, Gilmore said she had “no intention” of “creating libel or slander” and said she “made no untrue statements” about Lau during his campaign.

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THE AMENDMENT
Merry's amendment calls for a $100 fine plus court costs for a first offense with the fine waived if the pet owner opts for spay-and-neuter. The second offense would result in a $200 fine plus court costs. Should the pet owner choose spay-and-neuter at that time, the fine would be reduced to $50 plus court costs.

On the third offense, the fine climbs to $300 plus court costs, or $100 plus court costs with the spay-and-neuter option. Finally, on a fourth offense, the fine reaches $400 plus court costs, or $200 and court costs with the spay-and-neuter option.

“If at any time the pet owner decides on spay-and-neuter within 30 days of the offense date, then the fine portion is fully waived. Payment of fines (and court costs as approved by the judge) can be replaced by working at a local animal shelter in hopes that education on the spay and neuter need to curb area animal overpopulation will occur," the Merry amendment states.

Five Star Votes: 
Average: 5 (5 votes)

Comments

Move On

Mr.Lau should just leave it alone as recently passed and move on to more important things immediately. See how the new ordinance works-out, then perhaps revisit it. To dwell upon the fine deterrents is to dwell on the past. Let's move on. Mr.Lau will not betray his anti-mandatory spay/neuter position by moving on. The spay/neuter will remain optional for responsible owners while helping responsible owners whose dogs are harrassed by loose intact dogs. “I’m just ready for the city to move on. We’ve got bigger issues we need to focus on like jobs and economic development.”---Keith Lau

the economy

the shrinking fort smith economy with the loss of business and jobs is the most important issue facing fort smith citizens. our neighbors to the north are growing at over 30% and fort smith is not staying in the growth game that provides more sales tax that allows for quality of life projects. we must have much better growth numbers to prove that fort smith is a place that new business will want to locate and this should be the number one priority on every city leaders mind! the dog cat issue is worn out and old news so lets move on and work on the number one problem!

It's not just the economy, Stupid

One quick glance through the animal ordinances currently on the books and you'll find throwback rules to when the City ran its own shelter. A cut bait and run decision would be the worst thing to do. A contrived marginally approved law would indefinitely stay in the books. A quick fix now is actually the better strategy to take. And I hope that that is indeed what they do.

Marginally Approved?

The characterization of "marginally" seems to be arbitrarily convenient and rhetorical. Heck, the whole political process is marginal due to apathy! Why not try the ammended (and passed) ordinance for a sufficient time to determine whether it works. Other cities have done so. One person's crystal ball is clear while another's is cloudy. Theorizing doesn't cut it. Let it be and move on to more pressing issues.

marginal loss

"Johnny, the bad man took your dog away and we can't afford to get it back." Yeah, let's just try it, as long as it's not your conviscated dog.

Johnny can learn....

....and he can teach his parents. Children are our future, backwards is not their direction.

There you go!

There is no educational component. Animal Control WANTS to add that to their responsibilities, but alas, no money is being budgeted to teach...only to scold.

Humane Society is tasked to educate by its National Organization

The taxpayer is already paying for Humane Society services. Animal ordinance violaters can "work-off" the fines by visiting the animal shelter for a first hand orientation of animal overpopulation consequences, that is the consequences of insufficient spay/neuter resources. Kevin Settle even admits that animal services has much taxpayer support already. So I am glad you brought up the budgetary aspect. The money is there to be used more wisely and efficiently to address the impact of animal overpopulation and the solutions. The additional potential fines would be an inducement to more awareness(aka education) and responsibility. There are also numerous volunteers who would happily visit schools, church groups,senior group,fraternal organizations and business groups to share the state of knowledge regarding spay/neuter, animal overpopulation and the benfits to society in general from more humane treatment of animals and by extension, fellow human beings. Get informed. Choosing to ignore is something to be ashamed of while the lack of knowledge is nothing to be embarrassed about. Swallow our false pride, then be prouder yet again.

you have yet to make a convincing argument

Let's review. I do not believe the local humane society is any part of the Humane Society of the United States. But if it is, they are infamous for only giving 5% of the funds it collects back to animal shelters. City of Fort Smith taxpayers only pay for one thing at the humane society: per day boarding for animals picked up by animal control. That's it! When animal control picks up more dogs, and more dogs go unclaimed, taxpayers (you and me) will pay more. And we will pay more for only one thing: per day boarding. People who cannot afford fines, get to do what? Pick up dog doo and clean litter boxes at the humane society. Sure, that will encourage them to come get their dog. Fines collected by the court system do not go back to the humane society, so there is no "inducements". Volunteers can do the educating, you say. What the difference between then and now? Take the (Glass) blinder's off.

Moving On

Let's hope Mr.Lau does just move on and not dwell upon the animal ordinance as passed. There are more pressing problems facing Fort Smith. Don't get sidetracked, Keith. If the ordinance is a bad ordinance down the road, then repeal it. Let it self-destruct so you don't appear to "obstruct". Voters are going to hold you to your words, “I’m just ready for the city to move on. We’ve got bigger issues we need to focus on like jobs and economic development.” Thank You and look forward to a new approach to directing Fort Smith. Give it your best shot, sir!

Slander/libel

Mr. Lau, welcome to public life and politics. You are now fair game to criticize and slander. If your skin is too thin for that, you sir, are in the wrong (semi-volunteer) profession. Good luck on that legal action.

Not quite

Public figure or not just applies a different standard, it does not open the flood gates to lies and reckless disregard of the truth.

vendetta

oh, if you think back, you might recall Ms. Gilmore went public with a beef against Director Lau back in July. No doubt there will be a "Round Three" to come. Accordingly, Lau was right to put her on notice that he will have no tolerance for slander.

Proxy demonization

Keep stirring it up. The spin of Director v. private citizen where the director characterizes public criticism as libel/slander is nothing short of gossip. Let's move-on Mr. Lau. Take the lead as there is no need to push your weight around. Rise above the fray, seek higher ground and higher priority issues facing the city. You have stated your opinion. If you are right, the new animal ordinance will self-destruct which will be more credit toward you, sir. The house is on fire, don't lose sight of that by watering the lawn. We got bigger problems to fix and this is your opportunity to fix things, Keith. Tonight's BOD meeting on TV displayed a non-combative face of Fort Smith, short and sweet and professional. Good image with which to start the new year. Let's see the substance to that image. It takes a village. Let's cultivate that notion moreso. Thank You all, DOB and a more prosperous New Year to us all.