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.
PHOTO BY ED PIERCE    

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.

Recall ordinance measures provoke differing opinions in Windham

By Ed Pierce

The debate over recalling elected municipal officials before their term is completed and removing them from office has arrived in Windham and two tracks have emerged as to how to best establish procedures for adding this to the town charter. Earlier this summer, a citizen’s group launched a petition drive to create a recall ordinance and collected enough signatures of registered voters to place a referendum on the ballot in town this fall. The Windham Town Council also developed a recall ordinance and will vote to implement it at a council meeting on Tuesday night.

A citizen's petition to create recall procedures for town and
RSU 14 elected officials has received enough signatures to
be on the ballot this fall in Windham, but on Tuesday
evening the Windham Town Council will vote on a more
detailed recall ordinance to be added to the town charter.
PHOTO BY ED PIERCE  

While there are common aspects contained in each proposed ordinance, there also are some striking differences and the citizen’s group says that the town council ordinance is nothing more than a way to help protect elected officials subject to recall, which councilors and town administrators deny. Both groups say they are trying to be fair to voters and elected officials but put an ordinance in place in Windham that holds public officials accountable.

“Having a recall ordinance makes sense and provides a check and balance approach to local government,” said Barry Tibbetts, Windham Town Manager. “Ordinances with the least amount of uncertainty and with greatest clarity provide the least costly measures of implementation. I personally have always felt simple government, ordinances, rules etc., whenever possible are the best, this is not easy to achieve. The citizen petition did a good job in bringing this forward so that is a win for all, as with any initiative getting the “T’s” crossed and “I’s” dotted can be challenging.”

Kristen Day of Windham, who is part of the citizen’s group leading the petition drive for the recall ordinance referendum, says that there is nothing questionable or controversial about their proposal from a civic perspective.

“Ours is a non-partisan citizen’s initiative, and as such, we are proposing this language which we believe is in the best interest of every voting resident of Windham,” Day said. “The town has the opportunity to decide the outcome by doing their civic duty. And should it pass, any citizens can follow the process outlined in our Town Charter, as we have, to propose amendments to the ordinance.”

Under the terms of the citizen petition, any elected official may be recalled and removed from office by the qualified voters of the town. According to the petition, recall is intended to be used when, in the opinion of the number of voters hereinafter specified, an elected official, acting as such, has caused a loss of confidence in that official’s judgment or ability to perform the duties and responsibilities of the office.

The citizen’s group petition also specifies that any 25 qualified voters of the town may file with the Windham Town Clerk an affidavit containing the name of the official sought to be recalled and a statement of specific facts to support the grounds of recall. The Town Clerk would then send a copy of the affidavit to the official targeted for recall to the Windham Town Council. A petition would then be issued and must be returned within 30 days signed by registered voters of the town equal to at least 10 percent of the number of votes cast in the town during the last election for governor, but no less than 100 voters.

The Town Clerk would allow five days for the filing of legal challenges to the signatures on the petition. If no such challenges are filed, the Town Clerk would certify and submit the petition to the Town Council. At that point, the Town Council would give written notice to the official named in the recall and, if the official sought to be removed does not resign within five days, councilors would order an election to be held on a day fixed by them not less than 50 nor more than 60 days after the date of the Town Clerk’s certificate that a sufficient petition was filed.

The citizen’s petition also specifies that if any other town election is set to occur within 75 days after the date of said the Town Clerk’s certificate, the Town Council may, at its discretion, postpone the holding of the recall election to the date of such other election. If a vacancy occurs in the office after a recall election has been so ordered, the election shall nevertheless proceed as in this section provided. If the official sought to be recalled so requests, the WindhamTown Council shall make provisions for a public hearing on the matter, said hearing to take place not less than seven days prior to said election.

Petition details also ask that any official being recalled shall not be a candidate in the recall election. The nomination of candidates, the publication of the warrant for recall election, and the conduct of the same shall be in accordance with the provisions of the laws of the State of Maine relating to elections. Nomination petitions for candidates at the recall election shall be filed with the Town Clerk within 15 days after the date of the filing of the certificate of the Town Clerk as to the sufficiency of the recall petition.

Terms in the petition also require that the incumbent official shall continue to perform the duties of the office until the results of the recall election are certified. If the official is not recalled by voters, the official shall continue in office for the remainder of the unexpired term, subject to subsequent recall. However, if a subject is recalled by voters, the official would be removed upon the certification of the election results. In the event the recall petition is passed, the candidate receiving the greatest number of votes shall be deemed elected for the balance of the term of the official recalled.

The citizen recall measure also mandates that no recall petition shall be filed against an official with fewer than 60 days of term remaining or within three months after such official assumed office, nor, in the case of an official subjected to recall election and not removed thereby, until at least three months after that election. It also requires that no person who has been recalled from office or who has resigned from office while recall proceedings are pending shall be appointed to any town office or town board, commission, or committee within two years after such removal by recall.

If the referendum is approved by voters in November, it would replace all prior Town of Windham recall ordinances.

The language in the Windham Town Council’s proposed ordinance is more specific regarding certain provisions.

Under grounds for recall, elected town officials serving as a Town Councilor or a member of the Regional School Unit 14 Board of Directors elected by Windham voters could be recalled when, in the opinion of the number of voters specified an elected official has caused, through actions while in elected office, a loss of confidence in the official’s judgment or ability to perform the duties and responsibilities of the office.

The council’s proposed ordinance differs from the citizen’s petition in that it requires 75 qualified voters of the town to file with the Town Clerk an affidavit containing the name of the official sought to be recalled for actions in office, and a statement of specific facts of up to 200 words to support the grounds of the recall. The Town Clerk would then transmit a copy of the affidavit to the official who is the subject of the affidavit and to the Windham Town Council. The subject of the affidavit may submit a rebuttal statement within four business days of the Town Clerk’s transmission of the affidavit. Within five business days after the date of the filing of the affidavit, the Town Clerk would deliver to the 75 voters a sufficient number of copies of petition blanks for the requested recall.

The recall petition would have to be returned and filed with the Town Clerk within 30 days after issuance of the petition. Once returned, the Town Clerk would be required to determine that at least 15 percent of the number of participating voters in the last preceding gubernatorial election signed the petition. Once that is done, the Town Clerk would then deliver the petition to the Registrar of Voters, and the Registrar of Voters would have 10 business days to certify the number of signatures of qualified voters.

If the petition shall be certified to be sufficient by the Town Clerk and the Registrar of Voters, the Town Clerk shall allow five business days for the filing of legal challenges to the signatures on the petition. If no such challenges are filed, the Town Clerk would then certify and submit the petition to the Town Council. The Town Council would give written notice to the target of the recall and, if the official sought to be removed does not resign within five days, they would order an election to be held on a day fixed by them not less than 50 nor more than 60 days after the date of the Town Clerk’s certificate that a sufficient petition is filed.

Should any other town election occur within 90 days after the date of the certificate, the Town Council could, at its discretion, postpone the holding of the recall election to the date of such other elections. If a vacancy occurs in said office after a recall election has been so ordered, the election shall nevertheless proceed and if the official sought to be recalled so requests, the Town Council shall make provisions for a public hearing on the matter, said hearing to take place not less than seven days prior to such election.

The council’s proposed ordinance also mandates that if a member of the Town Council is recalled, any such vacancy shall be filled in accordance with Article II, Section 2.D of the Town Charter. If a member of the Regional School Unit Board is recalled, the Town Council shall select an interim director for the town to serve until the next annual municipal election. An election shall be held at the next municipal election to elect a director to fill the vacancy.

An incumbent official shall continue to perform the duties of the office under the council’s proposal until the results of the recall election are certified. If not recalled, the official shall continue in office for the remainder of the unexpired term, subject to subsequent recall. If recalled in the recall election, the official shall be removed upon the certification of the election results.

Terms of the town council’s ordinance require that no recall petition shall be filed against an official with fewer than 60 days of a term remaining or within six months after such official assumes office, nor, in the case of an official subjected to recall election and not removed until at least six months after that election.

The councilors’ ordinance specifies that the total number of votes to recall an elected official shall be no less than 25 percent of participating voters of the last preceding gubernatorial election. If the recall fails to meet this total, then the elected official shall not be recalled from office, regardless of the result of the vote on the recall. When a recall fails, the official shall not be subject to another recall petition until at least six months after the failed vote.

Tibbetts said that if the council votes on Tuesday evening to enact its recall ordinance, it would take effect in 30 days or on Sept. 29.

“The citizen petition if voted in the affirmative would take effect in November and replace the council’s action but those sections where the citizen petition is in conflict would be eliminated by a council vote,” Tibbetts said. “Since the citizen petition is an ordinance, the Windham Town Council can amend it at any time. Those amendments most likely would bring it back to the existing council ordinance tentatively approved on Aug. 29.”

If a charter amendment by the council is approved, it would override all the ordinances, replacing them, and according to Tibbetts that language is identical to the council ordinance.

“Another question relates to when this goes to a vote, that by charter states the council has 30 days to set the date, hence the November vote,” Tibbetts said. “The charter amendment would not allow any modifications unless 30 percent of participating voters in the last gubernatorial election approved of them if those changes were sought it could be by Council initiative or citizen initiative.”

Councilors also will vote Tuesday night to protect the integrity of the Windham Town Clerk position from partisanship by changing it from an elected position to an appointment. Linda Morrell has served as Windham Town Clerk for the past 28 years. <