Friday, September 1, 2023

Council-created recall ordinance fails in enactment vote

By Ed Pierce

During a special meeting on Tuesday evening, the Windham Town Council listened to resident’s thoughts about a recall ordinance that councilors were considering enacting despite a citizen’s group referendum proposing different recall procedures having already been placed on the Nov. 7 ballot.

Members of the Windham Town Council were
unable to enact a recall ordinance during a
special meeting on Tuesday, Aug. 29. 
Councilors will conduct a special meeting
on Thursday, Aug. 31 and Tuesday, Sept. 5
to decide if they will create a charter
amendment referendum regarding recalls of
elected public officials.
After taking public input, reviewing email received by the council and discussing the council’s recall ordinance, councilors voted 3-3 on their proposed ordinance, with Councilors Nick Kalogerakis, Bill Reiner, and John Henry voting no and Councilors Jarrod Maxfield, David Nadeau and Mark Morrison voting yes. Councilor Brett Jones did not attend the meeting and because a total of four council votes were not received, the proposed ordinance was not enacted.

Differences between the citizen’s group proposed recall ordinance, which will be decided by town voters Nov. 7, and the town council’s proposed ordinance, which councilors will now consider as a charter amendment referendum for voters Nov. 7, are in the details.

The citizen’s proposal requires 25 signatures of registered town voters to initiate a recall petition, while town requires 75 to initiate a recall petition. To get the recall to a town ballot, the citizen’s group proposal asks for a threshold of 10 percent of participating voters in the last gubernatorial election, while the town asks for 15 percent of participating voters in the last gubernatorial election.

The citizen’s proposal asks for no less nor more or if already scheduled the number of days to conduct a recall election at 50/60/75, while the councilor proposal is 50/60/90. As for the limits on how soon a recall could be initiated on a public official, the citizen’s group asks for three months after an election, while the councilors’ proposal asks for six months after an election. In terms of the percentage of gubernatorial turnout required for validity of a recall, the councilors’ proposal seeks 25 percent, while the citizen’s group doesn’t require a percentage.

One of the creators of the citizen’s recall referendum petition, Stephen Napolitano, said the councilors’ proposed recall ordinance and consideration of a charter recall amendment referendum undermines the intelligence of town voters.

“In Windham's history, no town council has ever created their own referendum to directly compete with a citizens' initiative referendum,” Napolitano said. “You have to ask yourself ‘why is the town rushing to get their own referendum on the same ballot?’ The town council should do the right thing and wait for the election results in November. On Tuesday night, it was great to see the overwhelming support for The People's Recall Ordinance.”

Another of the creators of the citizen’s recall ordinance referendum, Kristen Day, pointed out in an email to the newspaper the two biggest differences between the proposals is the mode of recall replacement and the voter participation threshold required.

“The town's ordinance has appointment by council of replacement (according to town charter language, the council appoints vacancies), and a minimum threshold for participation for the election result to be valid,” Day wrote. “The People's ordinance has election of replacement for the seat of the recalled (conflicts with the charter so the council would have to move to amend, if the people want it) and as a municipal election the recall is decided by simple majority, no minimum threshold to count the recall result valid.”

Day also wrote that the town's recall charter amendment calls for an election for a replacement for the recalled official, like the citizen’s group proposed ordinance (as a charter item it will apparently not conflict with the appointment for vacancy language) and has a minimum threshold of voter participation needed for the vote to be valid like the town recall ordinance.

“It's complex but the takeaway is the People's petition was signed by 1,541 people, and if it fails, it wasn't the language the town wants. But if it passes, Council will amend it as needed, and raise any changes they want (such as adding threshold) in town meetings,” Day wrote. “The difference is that according to the November vote, we will have heard from the voters, and from there, people will have input on any subsequent amendment process. Alternatively, if the town recall charter amendment is voted through Nov 7, and the people's ordinance is also passed, the charter amendment will become the law of Windham.”

Windham Town Council Chair Mark Morrison said that council members only seek clarity and accuracy in considering a charter amendment recall referendum.

“The reason for the council charter amendment versus the citizen initiative is that our version has been vetted and much clearer than the citizen initiative,” Morrison said. “So, from a clarity and accuracy and defensibility standpoint, this is what we have done. It was not meant to leapfrog anyone or to undermine, probably a better word, we are not.”

Councilor John Henry said the councilors’ proposed ordinance and consideration of a charter amendment recall referendum were fair and honest.

“I can assure you the process taken here was in good faith and above board,” Henry said. “The metrics we came up with to get it on the ballot are fair, not put in place to protect our positions, but to protect voters.”

Councilor Nick Kalogerakis said he was pleased with the turnout of Windham citizens wishing to share their thoughts regarding the council’s proposed recall ordinance at the meeting.

“My biggest complaint since I’ve been in office is you don’t hear from the people, so I thank you for coming out tonight,” Kalogerakis said. “The issues I have with the people’s ordinance is the numbers are too low and it could circumvent the democratic process. I don’t support putting this in the charter either. It’s a very tough spot to be in.”

Councilor Bill Reiner said he was opposed to enacting a councilor ordnance because of the speed with which it was drawn up and discussed.

“Rush, rush, rush the ordinance and a rush to vote on the charter amendment,” Reiner said. “It’s too much, too fast, too quick. We need to put the brakes on. A charter agenda item should be clean and accurate. If this was coming up about a different item in July, we would not be doing it this fast. I absolutely do not support the charter amendment going forward. The ballot is getting so congested, it’s confusing.”

Councilor Jarrod Maxfield said the state’s recall guidelines mandate that an official can be recalled only if a public official is convicted of a crime against a state agency while in office, while the council’s proposal spells out that a loss of voter confidence while in office is grounds for a potential recall.

He also said he believes that Windham needs accountability for elected officials through a recall procedure that is fair and respects the wishes of a majority of town voters.

“We were told they would not have signatures in time and that’s when we put something forward,” Maxfield said.

Councilor David Nadeau said that a council consensus led to the council’s recall proposal, and it was not created to conflict with any other referendum.

“We heard they weren’t getting the votes and we all agreed we needed a recall ordinance,” Nadeau said.

The council will hold a special meeting at 6 p.m. Thursday, Aug. 31 at Windham Town Hall regarding its charter amendment recall referendum proposal. During that meeting, a public hearing will be conducted allowing town residents to share comments about the council’s charter amendment recall referendum proposal. The council also will meet at 6 p.m. Tuesday, Sept. 5, and at that meeting a vote will be taken to determine if the council’s charter amendment recall proposal will be placed on the Nov. 7 ballot.

One issue that the council has already decided about the Nov. 7 ballot is whether to create a referendum for voters about making the Windham Town Clerk position an appointed position or keeping it as an elected position.

During Tuesday’s council meeting, Windham Town Clerk Linda Morrell said she brought up the idea of converting the position to an appointed one and not requiring them to be a Windham resident to councilors when thinking about what would happen after she leaves office. She said she has no immediate plans to retire just yet but worries about the possibility of no candidates coming forward to run for the job or a person elected to the position who is not qualified to handle all its responsibilities sufficiently.

Morrell, who has served as Windham Town Clerk for the past 29 years and was Deputy Town Clerk for seven years before that, said she hopes to continue to serve, but wanted the council to be aware of what could happen.

The council voted to postpone taking any action about the town clerk position until the second quarter of 2024. That way, if it is decided to create a referendum for voters, the maximum number of town voters would have an opportunity to vote on a measure because it would coincide with the 2024 presidential election which typically draws the largest number of voters in Windham elections. 

Timeline of events regarding recall ordinance

Dec. 28, 2022 – Kristen Day of citizen’s group asks Town Clerk to clarify procedures for recalling elected public officials.

April 21, 2023 – Citizen’s group receive instructions for Windham Town Clerk about pursuing charter amendment or ordinance for recalling elected public officials.

May 6, 2023 – Citizen’s group request to have Windham town attorney review language of proposed ordinance submitted to Windham Town Clerk.

May 10, 2023 – The proposed ordinance created by the citizen’s group is reviewed by group’s attorney.

May 18, 2023 – Town Clerk advises based upon a review by Windham Town Attorney that the citizen’s group that a language change was needed to change “town committee” to “town council” in proposed ordinance and that Secretary of State’s office was reviewing document.

May 19, 2023 – Citizen’s group notified Secretary of State’s office and Windham Town Attorney had reviewed proposed ordinance and citizen’s petitions were available to be picked up to obtain a minimum of 1,465 signatures of registered Windham voters to have a referendum put on the Nov. 7, 2023 ballot about the recall ordinance.

July 9, 2023 – Citizen’s group emailed Town Clerk informing them that the possibility existed of the group not getting the required signatures by the end of July.

July 11, 2023 – Windham drafts language for a council-initiated charter amendment addressing recall procedures.

July 31, 2023 – A total of 1,541 signatures of registered voters collected by citizen’s group is certified by Town Clerk placing a referendum on the Nov. 7 ballot for the citizen’s group proposed recall ordinance.

Aug. 15, 2023
– Windham Town Council discusses possible charter recall amendment to be placed on the Nov. 7 ballot during meeting and takes public comment about enacting a recall ordinance with language differing from citizen’s proposed ordinance already on Nov. 7 ballot.

Aug. 29, 2023 – A public hearing is held by the Windham Town Council about the proposal to enact its own recall ordinance. Councilors then voted 3-3 with Councilor Brett Jones not attending the meeting. With four votes required, the council’s recall ordinance fails.

Aug. 31, 2023
– The Windham Town Council will conduct a public hearing about placing a charter amendment regarding recall procedures on the Nov. 7 ballot with language differing from the citizen’s proposed ordinance already on the same ballot.

Sept. 5, 2023 – Windham Town Councilors will vote about placing a charter amendment regarding recall procedures on the Nov. 7 ballot with language differing from the citizen’s proposed ordinance already on the same ballot.

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