Attorney: ‘Possible criminal charges’ in 1% tax petition (Updated)

Editor’s note: See bottom of story for update.

As promised, the attorney representing the Citizens for Responsible Taxation has resubmitted documents calling for an election on the 1% prepared food tax, and, as promised, the attorney is threatening “possible criminal charges” if the city of Fort Smith does not accept the resubmitted documents.

“We believe the submissions on Saturday, March 26, 2011, to be legally sufficient. In an abundance of caution, we are also submitting this ‘amendment/correction.’ This letter incorporates all prior submissions; addresses the issues raised in your April 1, 2011, letter; and raises our own concerns about how the City has, unfairly and illegally, singled out this referendum petition,” Fort Smith attorney Brian Meadors noted in his letter to Fort Smith City Clerk Sherri Gard.

On Mar. 26, about 4,460 signatures were submitted to Fort Smith City Clerk Sherri Gard. The effort needs 2,822 valid signatures (registered voters in Fort Smith) to push the 1% tax to a public vote.

The tax was enacted Feb. 24 by the Fort Smith Board of Directors to resolve a more than 10-year search to plug an annual deficit predicted to occur when state turnback money dried up. The state turnback program ended for Fort Smith in June 2010 from which the city received about $1.8 million a year. Barring a successful citizen-initiated referendum, the tax will go into effect June 1.

On April 1, Gard informed organizers of the petition drive of two problems — no ballot title was submitted with the petitions, and each petition sheet did not have attached a copy of the ordinance sought to be referred.

A memo from City Attorney Jerry Canfield indicated that not having the ordinance attached to the petition sheet is potentially fatal to the petition effort. Based upon case law and guidance from Canfield, Gard found the petition forms “insufficient.”

Meadors argued in his letter that Arkansas case law related to how petitions are submitted is not as narrow as the city has interpreted, adding that Arkansas case law not cited by the city indicates petition requirements are to be “liberally construed” in favor of the petitioners.

The letter from Meadors also includes an affidavit from Eddie York affirming that “a full copy of the ordinance was with each petition” as they were signed.

Meadors specifically noted three ways in which the city mistreated his clients:
• The “differential treatment” on the 30th day to file the petitions being on a Saturday rather than “waiting to the subsequent Monday, as is normal in all matters having to do with the law;”;
• “Misinformation” related to notarization requirements; and,
• “Misinformation” related to the “necessity of including the voting precinct.”

The mistreatment, according to Meadors, opens the city up to violations of Arkansas’ Civil Rights Act and possible criminal charges related to election officers who commit fraud.

“To preserve my clients’ rights, suit will be filed on or before that day (April 25) if this issue is not resolved,” Meadors wrote.

UPDATED INFO
Gard said she “is confused as to what they are talking about” with respect to Meadors’ claims of providing misinformation. Gard reiterated that she encouraged Eddie York to seek legal counsel prior to gathering signatures. She also pointed York to the specific statutes related to a petition drive.

“Really, I helped him as much as the law allows me to,” Gard said.

Gard also said it’s too early to say if the petitions will yield 2,822 valid signatures. As of Friday, each petition page had an average of five valid signatures, Gard told the Times Record. With just 520 petition pages submitted, the average would not prove to be enough.

However, Gard said Monday that basing a possible outcome on the average is premature.

“I’d hate to even say,” Gard said when asked if the running average is a clear indicator of petition success or failure. “I don’t know if that trend is going to continue. … I can tell you that the pages I’ve gone through this (Monday) morning have a lot of 8 and 10 (valid signatures) on each page, so that (average) may go up.”

Canfield said he and Gard will meet later Monday afternoon to discuss the resubmission, and may have comment tomorrow morning. Canfield, who has previously said simply resubmitting the petitions with an ordinance attached to each page is not legally sufficient, said parts of the resubmission “remain unclear” but did not provide details.

He said Gard has the power to call a hearing on the issue if she wants to gather more evidence.