Recall protests not enough to stop election

Recall protests not enough to stop election

Sept 1, 2001

By Gail Binkly
Journal Staff Writer

An on-again, off-again recall election aimed at three members of the five-member Cortez Sanitation District board apparently will take place in November after all.

After a hearing Thursday attended by approximately 20 people, Kent Williamson, the appointed election official for the recall, ruled late Friday that protests filed by the three board members were not sufficient to nullify the entire recall effort.

Sam Jarvis, Jim Bridge-water, and board chairman Stan Pierce had charged that the recall effort should be invalidated because two persons on the recall committee had improperly circulated petitions when they were not eligible electors within the district, as required by law.

Williamson, who is also attorney for the district, found there was merit to some of their objections, but that the number of signatures affected was not large enough to stop the recall.

"Although there may not have been strict compliance with all of the statutory requirements," he wrote in his ruling, "there was substantial compliance and the technical statutory provisions should not act to hinder the right of individuals to protest."

He did sharply criticize one member of the recall committee, builder Don Etnier, for circulating petitions while knowing he was not eligible to do so.

"The actions taken by one of the Committee Members, Don Etnier, cannot be condoned in that he was aware of the fact that unless he was an eligible elector, he was not eligible to circulate petitions," Williamson wrote. ". . .clearly, Don Etnier did or did attempt to obtain signatures on the Petitions for Recall by circulating the Petitions in direct violation of the Statute."

Jarvis, reached late Friday afternoon, said he did not know what recourse there might be for protesting the ruling, but doubted that the three members would pursue the matter further.

"I don’t think so and I certainly wouldn’t be inclined to do that," he said.

He said the board members would have to discuss what to do next and expected to be making statements to defend their policies and urge voters to reject the recall.

A group of area residents has been pushing for the recall since early summer, complaining that the sanitation district had been high-handed and overly adversarial in dealing with delinquent customers and with developers seeking sewer-line expansions. The board members deny those charges.

The group seeking the recall turned in signatures July 10, only to have two-thirds of them rejected for technical errors and other problems.

One such problem was that Etnier and two other recall supporters, Fred and Nancy Thomas, who had circulated petitions, were judged not to be eligible electors in the sanitation district because they do not live within or own property in the district.

The Thomases own a business, Thomas Engineering, in Cortez, but it is owned by a corporation that is in turned owned by them. Fred Thomas has said that he and Nancy have voted for years in the district elections and believed they were eligible electors.

Etnier and his wife likewise own property in Cortez under a partnership, Residential Building Systems.

After the first recall effort failed, organizers had about a week to come up with more signatures to try to reach the 300 needed to force an election.

On Aug. 6, they turned in enough valid signatures to bring the totals to more than 400 for each of the three members targeted.

A total of 427 signatures were confirmed seeking Pierce’s recall, 420 for Bridgewater, and 407 for Jarvis.

But last week the three board members targeted for recall, along with some other citizens, submitted identical protests to Williamson with several objections to the recall petitions.

On Thursday, Kelly McCabe, acting as attorney for the three board members, argued that, for several reasons, all the petitions should be thrown out.

He said all the petitions listed Etnier, Ken Maness and Steve Gates as members of the recall committee and asserted that they were "eligible electors" in the district when Etnier was not.

In addition, he charged that Etnier and the Thomases had improperly circulated petitions the second time around even after being told not to do so.

Called to the stand by McCabe, Etnier admitted he had on occasion circulated a petition during the second signature-gathering effort. He said he had worked with an eligible circulator, Thomas Ayers, but when Ayers became ill, Etnier sometimes took the petitions around.

"There were times that he was with me and there were times that he was ill and could not be with me," Etnier said.

He said that the circulator was "the person that signed the document — I was just putting it forth."

McCabe asked how many petitions were involved, but Etnier said he did not know.

When called as a witness, however, Thomas denied that he or his wife had circulated petitions during the second effort. He said they had hired a woman to contact people about signing the petitions and had given her a desk in their office.

"From time to time she would go out and obtain signatures from people that couldn’t make it to the office," Thomas testified. "There were times when she was gone and people came in that she had called. We just pointed to the desk and they would sign it."

Thomas said he had made his office available for the recall effort, but had not done any soliciting himself. He admitted, however, writing a letter to the Cortez Journal in which he asked citizens to sign the petitions, but said he didn’t know whether that qualified as soliciting.

The three board members also testified. Bridgewater and Pierce said they had each contacted 10 to 15 people who signed the petitions, asking them who had solicited their signatures, and some said it had been Etnier acting alone. None of those persons testified directly, however.

At times the testimony seemed to stray far from the legal issues involved, as Pierce described how hurt he was by the recall and speculated about Etnier’s motives.

"I think it’s a real shame that we have citizens who do not respect the fact that there are people who run for public office, who try to do the best they possibly can, try to serve the interests of the area and the community, and they go about trying to disrupt the overall good of the area," he said. "I’m deeply hurt by some of the people that signed the petitions and I feel a personal affront."

McCabe then asked whether Pierce attributed any improper motives to Etnier.

"I think Mr. Etnier has displayed, not only in this case but in some other cases he was a part of, that he’s out to get us one way or the other," Pierce said.

Jarvis testified that it was his belief that a number of petitions had been circulated illegally and that "an individual who signed that petition as the circulator has basically perjured themselves by doing so."

Johnson asked no questions and called no witnesses, but told the court that because the right of recall is fundamental to democracy, some leniency should be granted the signature-gatherers.

"As far as personal affront to Mr. Pierce, that was not intended, but as citizens, with our First Amendment rights, we can say things we believe to be true. The right of recall has to do with the public dissatisfaction with how somebody has been performing in office."

She read the affidavit of the circulators from the petition form, noting that nowhere did it specify that the circulator had to be present when every signature was made.

She said state law does not require that recall-committee members be eligible electors. "The committee can be anybody concerned about the issue," she said. "The bottom line at the end of the day is whether you have 300 valid signatures."

She said the statement on the petitions that the three members were eligible electors was "just an erroneous phrase" that resulted from their using a form provided by the county clerk’s office.

But McCabe disagreed. "It’s completely inappropriate to represent that one of the committee members is an eligible elector when he’s not," he said. "The law does not allow us to write fiction on these petitions."

After throwing out some signatures that had been collected on the petitions allegedly circulated by Ayers, and others that had either been taken at the Thomas office without Campbell present, plus a few signatures from persons who asked to be removed, Williamson found that there were still 364 valid signatures on Bridgewater’s petitions, 370 on Pierce’s, and 351 on Jarvis’s.