City Clerk: 1% petition is insufficient (Updated)

Editor’s note: Story is updated with several additions throughout.

There will be no election on a 1% prepared food tax in Fort Smith unless court action reverses Monday’s ruling by Fort Smith City Clerk Sherri Gard.

“I hereby determine that I cannot certify to the Fort Smith Board of Directors that the Referendum Petition is sufficient. Rather, this letter shall constitute my determination and notice to the Fort Smith Board of Directors that the petition is insufficient,” Gard noted in a letter sent to petition organizers and their attorney.

Gard’s investigation, including interviews and testimony from several persons who gathered petitions, found that “at least” 1,409 of the 3,363 signatures verified as legal voters “cannot be accepted as verified inasmuch as those affiants have confirmed that there were signatures that they did not personally witness.”

Brian Meadors, attorney for the petition organizers, was not surprised by Gard’s ruling.

“I wish there were a way I could verbally shrug my shoulders,” Meadors said Monday, as an indication he knew this would be the decision.

Meadors said he would “probably” file a lawsuit within the next 30 days. Part of the filing would seek a preliminary injunction to stop collection of the 1% prepared food tax until the case can be heard and a ruling issued. He said the suit would likely be filed in Sebastian County Circuit Court.

Meadors declined further comment.

Eddie York, owner of Art’s BBQ and the de facto leader of the petition effort, was not short on comment.

“It didn’t surprise us. We knew they (city of Fort Smith) were looking for every little thing, you know, to kill this,” York said.

He said people are angry because they weren’t allowed to vote on the tax and believe they are being wrongfully prevented from forcing an election.

“I think they (Fort Smith Board of Directors) are making a terrible mistake. I’m telling you that a very large group of voters in town are mad as hell about this. … We’ll see what happens. But I tell you, they are going to regret doing this,” York said.

PETITION HISTORY
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 Mar. 26, about 4,460 signatures were submitted to Gard for sufficiency determination. The effort needs 2,822 valid signatures (registered voters in Fort Smith) to push the 1% prepared food tax to a public vote.

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. Gard based part of her decision on input from City attorney Jerry Canfield, who cited legal precedent in his recommendation to reject the petitions.

Meadors resubmitted the petition documents April 11. In doing so, Meadors threatened criminal charges if the city of Fort Smith did not accept the resubmitted documents.

A hearing was held April 20 during which petition supporters made their case. It was during that hearing that Frank Glidewell, one of the petition organizers, admitted to not witnessing all the signatures for which he had signed an affidavit affirming his being the witness to all signatures he submitted.

CITIZEN TESTIMONY
In Gard’s ruling, she notes this interaction in testimony from “Citizen B.”

“At the hearing on April 20, 2011, Citizen B verified that some signature sheets subject to his affidavit were simply left at locations and were signed by persons outside of his presence. Although invited to identify those signatures he may have actually witnessed, Citizen B did not subsequently do so,” Gard wrote.

Gard included several other comments from those who signed affidavits saying they witnessed signatures.

Citizen D: “I did (witness) about 85% of them. Some of the other girls witnessed the rest.”

Citizen E: “I’m not there all the time, but I tried to make sure someone was there to witness. I saw some of them, but I mostly had to rely on the employees to witness.”

Citizen F: “I’m not there 100% of the time so I did not witness every single one.”

Gard noted that she did not disqualify petitions only because they may have failed to have a petition attached when turned in.

“Based on the language of the City’s ordinance, I do not find that the failure to attach a copy of the ordinance to the petition at the time the petition was ‘turned in’ renders the petition fatally defective,” Gard wrote.

CITY ATTORNEY OPINION
Canfield, in an opinion letter following the April 20 hearing, said an affidavit is “destroyed” by proving just one signature invalid or not genuine. However, Canfield cited case law indicating that the “falsity” of the bad signature “must be shown to be conscious and more than inadvertent.”

Continuing, Canfield wrote: “Where an affiant acknowledges they failed to require petitioners to sign in their presence; left blank petitions at businesses and arranged to pick them up later or have received them through the mail; or otherwise failed, personally, to witness the signing of the petition, then a city clerk might properly find that a false affidavit has been submitted and, therefore, may exclude those signatures tendered as part of that petition.”

As to each petition not having the exact ordinance number, date of passage and full title, Canfield argues that the law provides no flexibility on the matter. Meadors argued that “substantial compliance” was all that was required, and that the information on each petition was “essentially the same.”

“Even if your office and the Board of Directors were to infer an intent by the petitioners that the title to the ordinance or a statement ‘essentially the same’ should be the ballot title, it is our opinion that neither the City Clerk nor the Board of Directors has the constitutional prerogative to perform the function of drafting the ‘exact title to be used on the ballot.’ The Arkansas Constitution grants that prerogative to and imposes that task on the petitioners,” Canfield opined.