Traverse City News and Events

TCAPS Recall Hits Legal Snag

By Beth Milligan | Dec. 7, 2019

One week after a local effort to recall State Representative Larry Inman hit a wall due to a legal technicality, a separate campaign to recall three Traverse City Area Public Schools (TCAPS) board members has also been dealt a blow.

TCAPS Transparency, a community group working to recall Board Chair Sue Kelly, Treasurer Matt Anderson, and Secretary Pam Forton, was informed this week by Grand Traverse County Clerk Bonnie Scheele that the petition language for Kelly was incorrectly filed. Because Kelly resides in Leelanau County, her petition language needs to be filed in that jurisdiction, rather than in Grand Traverse County. A November 26 decision made by the Grand Traverse County Election Commission to approve recall language for all three trustees therefore is invalid for Kelly, according to Scheele.

The mix-up was caused by complex language in Michigan election law that confused not only TCAPS Transparency but Scheele, both parties acknowledged. Scheele explains that she is the filing official for TCAPS, meaning that when candidates run for a school board seat, they file their paperwork with her. That is true regardless of whether the candidates live in Grand Traverse, Benzie, or Leelanau counties, all of which fall within TCAPS boundaries. But a recall campaign for a school board seat – the first Scheele can remember overseeing in 30 years – is handled differently. The recall language must be submitted in the “county in which the officer whose recall is sought resides,” the law states. Once the language is approved and petitions circulated, the collected signatures are turned in to “the county in which the largest portion of the registered voters in the electoral district reside” – in this case, Grand Traverse County.

The Michigan Bureau of Elections confirmed with Scheele that Kelly’s petition language must be submitted in Leelanau County, while her recall signatures must be submitted in Grand Traverse County. “I know it is confusing when reading through the recall sections in the Michigan Election Law…there is the submission of the language for determination of whether it is clear and factual, and then there is the actual filing of signatures,” Lori Bourbonais of the Bureau of Elections emailed Scheele. “It isn’t easy for election administrators to keep these sections straight, and it’s often hard to explain to a lay person.”

Scheele agrees with that point, saying she didn’t realize Kelly’s petition needed to be filed in Leelanau County until well after the Election Commission approved recall language for all three trustees. “TCAPS falls across three counties, and it created a real confusion,” she says. “(School board members) all go through me to get on the ballot, and that’s why I didn’t think anything of (the petition language filing).”

The snag has both immediate and long-term consequences for TCAPS Transparency’s efforts to recall the three trustees, an effort the group is leading in response to the controversial ouster of former Superintendent Ann Cardon. Justin Van Rheenen of TCAPS Transparency says he has already filed paperwork in Leelanau County to have Kelly’s recall petition language approved. A hearing has been set for the Leelanau County Election Commission to rule on the language December 18 at 8:30am at the Leelanau Government Center.

Several outcomes could result from that hearing: The language could be denied, in which case TCAPS Transparency could appeal the decision or revise the petition language and try again for approval. The language could also be approved at the December 18 hearing, in which case Kelly would have 10 days to appeal that ruling. If she didn’t appeal, TCAPS Transparency could immediately begin collecting recall signatures; if Kelly did appeal, the courts have up to 40 days to rule on her case.

All of those scenarios have different timelines attached to them – a factor with significant implications for the recall campaign. TCAPS Transparency needs to collect 11,633 signatures for each board member in order to trigger a recall election. Given how daunting that task can be – and the fact recall signatures are only valid for 60 days – circulators ideally want to collect signatures for all three trustees simultaneously.

However, Kelly is now on a separate timeline track than Anderson and Forton in the recall process. Both Anderson and Forton filed appeals in Thirteenth Circuit Court Friday challenging the Grand Traverse County Election Commission’s decision. They believe (as does Kelly) that the petition language is invalid because it states that trustees "voted to terminate Ann Cardon’s employment...in a mutual separation agreement." Board members argue that Cardon resigned and her employment was not terminated, so the language should be rejected. The courts have 40 days to rule on Anderson's and Forton's appeals. Until a ruling occurs, TCAPS Transparency can’t begin collecting recall signatures for those trustees.

While a decision on Anderson's and Forton's appeals could come by mid-January, a decision for Kelly’s appeal – if one was necessary and pursued by Kelly – could take another month, potentially arriving in February. TCAPS Transparency would then need to begin the work of collecting signatures. Once they're collected and turned in, a recall election could be scheduled as soon as 95 days later, in either May or November, whatever comes first.

All of the above points to November likely being the earliest a recall election could occur for all three trustees, instead of May as TCAPS Transparency originally hoped. Van Rheenen acknowledges that’s one possible outcome, though he says TCAPS Transparency could also pursue two different signature-collection campaigns: one for Kelly, and one for Anderson and Forton. The group’s leadership team will meet this weekend to consider their options, he says. But Van Rheenen says TCAPS Transparency is clear on one point: The group doesn’t want to repeat the mistakes made in the Inmall recall campaign, in which one missing word on a petition ballot invalidated nearly 14,000 signatures (an outcome that’s currently being challenged in court).

“We want to do this right, and we’re learning our lessons from the Inman recall,” Van Rheenen says. “We have not started collecting signatures, because we don’t want to have any signatures invalidated and waste the public’s time. We have legal counsel helping us work through this...and we're looking at all of the information to make sure we’re covering our bases.”

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