Tahlequah Daily Press

Local News

January 10, 2013

Citizens question election procedures

TAHLEQUAH — Several Tahlequah residents are questioning the procedures city officials followed when calling for Tuesday’s sales tax election, and suggest the rush to get the proposed ordinance on the ballot may have produced irregularities.

NSU Associate Professor of Accounting and Business Technology John Yeutter pointed out that stipulations in the city charter may have been circumvented – an omission that some suggest could render the election null and void.

Yeutter quoted from Section 48, Final Passage of Ordinances, which reads: “No ordinance shall be passed finally on the date when it is introduced except in the case of public emergency, the nature of which emergency shall be clearly stated in such ordinance. No ordinance making a grant or any franchise or special privilege shall ever be passed as an emergency measure.”

Yeutter said he perused the minutes of city council meetings leading up to Nov. 5, when the council voted to put the measure on the ballot. He said he’s been unable to find any evidence the ordinance was introduced during an earlier session.

But Ward 4 City Councilor Linda Spyres believes the city acted properly, and that it wasn’t required to have a second reading of the ordinance.

“It did not have to be read twice [by the council],” said Spyres. “We read it once, and the people read it the second time and ultimately voted on it.”

An agenda shows the council met Nov. 5, 2012, to take “consideration and action upon” an “ordinance” relating to the imposition of a 3/4-percent city excise tax. Ward 2 Councilor Jack Spears made a motion to adopt the ordinance as listed on the agenda. That same agenda item, and a copy of the ordinance attached to the agenda, explains the implementation of the ordinance was subject to voter approval.

Shortly after the council took up the ordinance Nov. 5, councilors called for a special municipal election for the excise tax.

Spyres said the process is the same one that was used under a 2009 city proposal that went before voters, and that it was done under the guidance of professionals – including Floyd Law Firm P.C., hired as bond counsel, and Stephen H. McDonald and Associates, hired as financial advisers.

McDonald was unavailable for comment Wednesday, and a message had not been returned by press time.

An emergency clause might be another way election procedures could be justified in this case. However, the city charter suggests voters would have to be told specifically that an emergency existed – and that did not happen.

Connie Parnell, secretary of the Cherokee County Election Board, agreed with Yeutter that unless there’s a clause in the city charter she doesn’t know about, irregularities could exist.

Parnell said she received the proposed ordinance from the city on Thursday, Nov. 8, just days after the city council voted to put the measure on the ballot in its Nov. 5 meeting.

But Parnell stressed there could be extenuating circumstances that would qualify any irregularities. She explained Tahlequah’s city government is “home rule charter,” as opposed to statutory; this means officials can set their own rules of operation, within limits.

Anyone wanting to protest the election could not do so through Parnell’s office. She would only handle the complaint if the individual wanted a recount or was alleging problems with the way the election was conducted.

“This is something that would have transpired before they ever submitted the resolution to me, for the election,” she said.

“The Friday deadline was set to ask for a vote recount, or to protest irregularities in the mechanics of the election itself.”

Parnell said the Friday deadline would not apply to questionable procedures during the lead-up to the balloting. In cases like this one, no statute of limitations would apply, either.

A similar situation occurred with the first NSU Gable Field tax, which went before voters in 2001. The city had already been collecting the money before local attorney Monte Strout initiated legal proceedings. Ultimately, a new election was called, and the measure passed a second time.

“There would maybe be some court costs involved in that type of situation, but anyone wanting to do that would need to get an attorney to get the legalities taken care of,” Parnell said.

Strout confirmed any citizen who would be subjected to the tax would have a right to protest it.

The process would start with an attorney filing a lawsuit against the city, mayor and council to “void the election, vacate it, and enjoin collections” of any monies, he said. The suit would be handled through the district court system.

The Gable Field tax protest was based on a failure to legally publish the proposed ordinance, but Strout said failure to read the measure into the minutes would present a different kind of problem.

“If the election was not properly brought before the people in the planning stages and in accordance with the city charter, there’s a substantial chance it could be invalid,” said Strout.

Aside from the charter issue, several other local residents are also complaining about the way the election was handled.

Local businessman Albert Soto said that while city officials should be honored for their leadership roles, he still has questions.

“I am disturbed that this initiative was put to a vote on Jan. 8 rather than in February during our normal election cycle. Does this early date encourage voting or discourage it?” Soto wrote on the Daily Press’ Facebook page. “I am a very involved individual in politics and local issues in this city, and I just heard about this initiative just a month ago and just recently that it was tied to a bond issue.  Can our elected officials have a clear conscience moving forward with this bond and sales tax increase, knowing that the majority of our residents [did] not even know there was  a vote taking place? I am disturbed that $21 million – three times the size of the last bond – is controlled by so few hands. That is a lot of money for such a small town.”

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