Legal opinion issued on Director recall rules

story by Aric Mitchell

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.

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.”

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.

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.