BY PHIL CUSTODIO
Clarkston News Editor
Nine candidates are running for City Council in November, in the wake of a charter-breaking nomination process.
“We violated the charter in order to create the new Aug. 7 deadline,” said Mayor Steven Percival at a special meeting of the City Council, Aug. 8, to discuss the issue. “If we allow that to stand, we are then advocating breaking the law.”
City attorney Thomas Ryan admitted the council violated the charter under his advice. The City Council’s resolution in April to change candidates’ filing deadline from Aug. 7 to July 24 was made in error, Ryan said.
“I should have never let that come forward,” Ryan said. “Our charter provision, which says it has to be on the primary day before four o’clock (Aug. 7), was perfectly adequate and legal, but I misread the provision of the state law – that’s my error.”
The state wanted to make filing deadlines uniform for all communities, 15 weeks before the November election, which this year was July 24, he said.
“However, the statute has an exception for cities whose charters did not have a deadline after the primary date, which I just found,” the city attorney said.
He learned of the exception on July 31 and verified it with the state, he said.
“In response, on Aug. 1, I directed the clerk to file new notices on the website and at City Hall,” Ryan said “I also directed her to get it in the newspaper as soon as she could. The Clarkston News is weekly, we couldn’t get in there. So she put it in the Oakland Press.”
Also, Eric Haven resigned his seat on the City Council on July 20 to run for mayor. The resignation was required by the Charter Section 4.18, Restrictions Concerning Officers, “An incumbent elective city officer shall not become a candidate for any elective city office, except to succeed oneself, without first resigning from city office.”
“I said signatures before July 20 should not count because you can’t run for an office you haven’t yet resigned from,” Ryan said.
On July 25, the city posted Haven’s vacated City Council position as an available one-year term. This violated the Charter’s requirement of at least a week for public postings.
“The one year seat was not properly posted,” Percival said. “I would say none of them are valid.”
Resigning less than a week before the deadline made it impossible to give proper notice, said Council member Scott Reynolds.
“That bothers me. It’s not transparent,” said Reynolds, also saying the requirement in the charter to resign before running seems archaic. “Unfortunately for the candidates, they may have gotten some advice hastily given. I feel like there needs to be an independent party to give council on this.”
The mayor said the deadline change was an honest mistake, but posting the one-year term was a blatant violation of the charter.
“At that point, I would have said you still have an opportunity to run – your opportunity now is Oct. 26 when the write-in affidavits are due,” Percival said. “We have all taken oaths to protect the charter. We have not adhered to the city charter.”
The city is unlikely to face consequences, though, Ryan said.
“There’s no provision in the charter that says, if you don’t comply, then draconian things happen,” he said. “We tried to substantially comply with the charter – obviously, you want to comply with the charter. But we’ve got people now that have filed. I’m glad somebody filed for both positions. That sort of, I think, negates somewhat the public notice issue.”
There still is an opportunity for someone who wants to go through the write-in process, until Oct. 26, he said.
Reynolds was shocked this happened in a town of this size, and said it places a black cloud over the city.
“I have served on the council a little more than a year now. The amount of legal matters this city is involved in seems disproportionate,” he said. “Personally, I have a problem with this.”
Council member Sharron Catallo saw nothing wrong.
“Dave (Marsh) had his petition out for a two-year term, and he decided go for a one-year term. I don’t see that as underhanded,” Catallo said.
There was enough time for candidates to get their nominating petitions signed, she said.
“We did get a second candidate. People knew about it. It worked,” she said.
“It still violates the charter,” Percival said.
“It’s an old charter,” Catallo responded.
As required by law, city Clerk Sandy Miller filed Petition Filing Verification Forms with the state, Aug. 9. Certified candidates are Eric Haven and Steve Percival, running for mayor; for three, two-year seats on City Council, candidates Al Avery, Sharron Catallo, Rick Detkowski, Hampton Swayne, and Sue Wylie; and for a one-year term on City Council, Michael E. Cascone and David Marsh.
At the Aug. 8 special meeting, Percival recommended removing the one-year seat from the November ballot because it was not properly posted, instead having an appointment serve until a special election in May.
“We can’t just throw out extensions that violate the charter, so only some of us on the inside get our petitions in,” he said. “Notices are for the public.”
Council member Jason Kneisc said removing candidates from the ballot seems like something that would happen in communist countries.
“I’m not prepared to take anyone off of any ballot,” Kneisc said.
Council member Sue Wylie made a motion to place the four original candidates on the ballot if certified by the clerk.
“I’m saying that because I’ve rarely seen such a mess in the city. But I think this is in fairness to the individuals and give voters that opportunity to see their names on the ballot,” Wylie said.
Percival said the motion wasn’t needed.
“It’s already going forward,” he said. “I don’t want to vote to violate the charter. This would violate the charter.”
“I don’t see a violation of the charter,” Catallo said.
Anyway, the issue is moot, Ryan said.
“Let the clerk do what she’s supposed to do,” he said. “It’s really only a discussion item tonight. There’s no motion, no action items, so I think it’s premature, and I think we should let the clerk do her job.”
“I withdraw my motion,” Wylie said.
On April 9, City Council voted 5-0 to change the filing date to July 24. Reynolds, Haven, Wylie, Detkowski, and Catallo voted in favor. Percival and Kneisc were absent.
On July 3, the city posted public notice for mayor and three council seats, nominating petitions due July 24.
Eric Haven resigned from City Council on July 20, and on July 25, the city posted a list of candidates, including the one-year term.
On Aug. 1, the city posted on its website the filing date extension to Aug. 7.
City Council voted 6-1 at its Aug 13 meeting to approve a motion to rescind the April 9 resolution.
Percival voted against the motion.
“I’m against this only because it’s so much after the fact. It has absolutely no bearing on anything we do,” he said. “It’s just ridiculous – on bad information, we created the resolution. On July 31, it was changed without our knowledge. Now we’re trying to clean things up.”
“Let’s just get it out of the way,” Catallo said.
City Council voted unanimously to appoint Joe Luginski, City manager Jonathan Smith, and Clerk Sandy Miller to the city Election Commission, for one year.
“This should have been done many years ago,” Percival said. “We really need to clean this up.”
City Council member Sue Wylie was previously part of the commission, but declined reappointment because she is running for re-election.
Percival asked Cara Catallo, who was in the audience, but she also declined.
“My mom (Sharron Catallo) is a candidate,” Cara said. “(Though) I don’t feel I need to withdraw. I have really strong ethics.”