Problems found with petition seeking 1% food tax election

The petition drive to force an election on enactment of a 1% prepared food tax is in trouble.

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. In 2010, the city received only $888,723. A fund balance will allow the city to cover the convention center shortfall for 2011.

Barring a successful citizen-initiated referendum, the tax will go into effect June 1.

Fort Smith City Clerk Sherri Gard on Friday (April 1) informed five 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.

“I hereby determine that the referendum petition (including all of its parts) filed with my office is insufficient to refer the subject ordinance to an election in accordance with the requirements of the Arkansas Constitution, applicable Arkansas statutes, and the Ordinances of the City of Fort Smith,” Gard noted in a document sent to Liz Armstrong, Frank Glidewell, Chuck Girard, Jack Swink and Eddie York.

By law, the petition organizers have 10 days to correct the problems.

‘FULL COMPLIANCE’
York was upset with the notice, saying that Gard didn’t mention the missing documents when the signatures were submitted. However, by law, the burden of providing correct documents in the manner prescribed by law is on the shoulders of the petitioners.

On Feb. 24, York said the petitioners had sought the counsel of an attorney and were legally prepared, and those gathering the signatures know the rules, especially the rule that each signature has to be witnessed.

“We’re geared up. We’ve got everything done and we’re going to start putting out the stuff tomorrow,” York said in February. “We’re going to get this thing done the right way, and then we’ll have an election. And I’m telling you that the people are not going to support this tax.”

Later in Friday’s interview with York, he switched gears and said he believes the problems are minor.

“We did everything we were required to by law. We’ll put out our response Monday. We’ve talked to our attorney and he says we are in full compliance with the law,” York said. “We knew the city would be nitpicking us when we got into this thing. I’m telling you, this will stir a hornet’s nest up among the voters if they do that (reject the petition).”

York would not identify the attorney, saying that would be disclosed Monday.

DIFFICULT TO FIX
City Administrator Ray Gosack believes one of the two problems is anything but minor. The ballot title issue is easy to correct, he said, but not having the ordinance attached to each petition sheet will be difficult to remedy.

Indeed, state law and case law on the matter appears certain, based on advice from Jerry Canfield, an attorney with Daily & Woods who represents the city.

Canfield cites a case in which the city clerk in West Memphis refused to certify a petition because a copy of the referred ordinance was not submitted with each petition sheet. The Arkansas Supreme Court upheld the clerk’s decision, noting: “(T)he purpose of attaching a copy of the measure to the petition is to inform the voter of what he or she is signing, regardless of whether the measure is a statewide act or local ordinance. Those who sign must have the opportunity to know the contents of the local ordinance before signing the petition.”

Gosack said the petitioners now have the tough burden of proving the ordinances were attached when the petitions were signed.

“How can the city clerk verify compliance with that requirement if the proof has been removed or destroyed?” Gosack said.

Another problem the petitioners may face was also mentioned in Canfield’s review of the documents. There appear to be initials following some signatures that are not the same as the person affirmed as witnessing the signatures. Canfield said the “extraneous initials” bring some petition sheets into question.

“Further inquiry would be required with reference to this issue,” Canfield advised.