No sooner do I mention the council chaos in Hartford than two bills pop into the Legislative hopper hoping to clarify how city governments are supposed to run. Senate Bill 64 is o.k.; Senate Bill 65 is a clunker.
Senate Bill 64 styles-and-forms a bunch of statutes on voting rules for mayors and city council members. The juicy juice is Section 7, which amends SDCL 9-8-7 to make clear that former Hartford City Council president Doyle Johnson was wrong, wrong, wrong when he cast two votes, one for himself and one for the mayor in whose stead he said he was acting, to quash a mayoral recall petition last November. SB 64 leaves in place council presidents’ duty to preside over council meetings in the absence of the mayor, but it adds this key sentence:
However, the president of the council or vice president of the council shall only vote as an alderman in the absence of the mayor. No alderman may vote as the mayor to break a tie vote [Senate Bill 64, posted 2016.01.21].
I contend that existing statutory context, not to mention one-person-one-vote common sense, make clear that the council president cannot cast two votes… ever. But if it takes a new law to stop some city councilors from torturing logic and law, well, so be it.
Senate Bill 65 impresses me less. SB 65 reinforces the Hartford City Council’s rejection of a mayoral recall petition by requiring that municipal recall petitions state not just “the grounds on which removal is sought” (the current requirement in SDCL 9-13-30) but “facts to support the grounds on which removal is sought.” SB 65 then adds review by the city auditor to the recall petition certification process, empowering the city auditor to reject a recall petition before it even reaches the city council:
The auditor shall review the petition to determine if the signatures are valid and the recall petition includes a statement of facts to support grounds for removal. If the auditor concludes that the recall petition meets the requirements of § 9-13-30, the auditor shall present the recall petition to the governing body [Senate Bill 65, proposed language to be added to SDCL 9-13-31, posted 2016.01.21].
Senate Bill 65 limits a popular check on municipal government power by allowing an unelected official, the city auditor or finance officer, to pass a judgment on statements of fact that is more properly rendered by the citizens whose vote is petitioned. I don’t have historical numbers handy, but I am not of the impression that local government is being swamped with recall petitions. As any South Dakota activist will tell you, circulating a petition is not easy. A municipal recall petitions face three firewalls against lies and misrepresentations: gathering signatures from 15% of registered voters in sixty days, finding candidates to run against the recalled officials, and winning a majority vote.
Under the status quo, the voters decide if there are sufficient grounds to remove an elected city official from office. Under SB 65, an unelected city official appointed by officials subject to recall determines if a recall can go forward.
I’d prefer to put my faith in the voters. Pass Senate Bill 64 as a grudging reminder to dopey or devious public officials of common sense, but vote Senate Bill 65 down to protect citizens’ right to recall malfeasant elected officials.
Having been through a removal from office hearing process, in which grounds for removal – with NO SUPPORTING FACTUAL EVIDENCE were presented to substantiate the alleged grounds, I like this part of 65; “facts to support the grounds on which removal is sought.”
Boy, that was a cumbersome turn of phrase. Clarification, grounds for removal – unsubstantiated by factual evidence – were USED in the process.
But that’s a different process, Richard. You’re talking about an official hearing process, governed by specific rules and statutes, right? Was there a burden of proof?
Recall elections have no such burden of proof or presumption of innocence. We get to vote for or against the mayor for whatever reasons we want. Impeachment is a quasi-judicial process with perhaps stricter standards, but a recall is an election like any other, in which we hope citizens vote based on facts and policies but in which we cannot mandate such fact-based voting. Voters are the ultimate authority on what constitutes the facts justifying re-electing the mayor; why let the county auditor arbitrate those facts prior to the election?
The public hearing process (Impeachment if you will) had no burden of proof requirements either – and none were presented. The “charging documents” simply listed “for cause” items(such as insubordination, malfeasance, nonfeasance, etc.) with absolutely no supporting documentation to support any of the “causes”. When asked what those terms even meant, none of the “hearers of fact” could even give an accurate definition – let alone present an documented exemplary incident that would meet such a definition. I believe it was what is referred to in the literature as a “kangaroo trial”.
My experiences in SD have been that, for the most part, small town councils have no inclination to govern under the concept of “rule of law”. Rather, it is all about “not making anyone (or as few people as possible) mad”. Purely popularity politics = poor governance – IMO.
Hmmm… let’s try this angle, Richard: if a recall petition should include a statement of facts to support the grounds on which recall is sought, and if some government official has to deem those facts accurate to allow the public to vote, should candidates have to include statements of fact to support their grounds for seeking office, and should we allow the city auditor or Secretary Krebs to say that those facts aren’t good enough to place those candidates’ names on the ballot?