Today I'll kill two birds with one stone...

The following letter was faxed, emailed, and snail mailed to the Secretary of State this morning.  I'm also using it as my post so you'll know how this renegade council takes state law, and town law (the town charter) into its own hands.

Gary Lopez

37 Gleneagle Drive

Centerville, MA, 02632

508 957 2293

displacedkanaka@yahoo.com

November 9, 2009

Secretary of the Commonwealth

Elections Division, Legal Department

One Ashburton Place, Room 1611

Boston, MA 02108-1512

ATTENTION; Ms. Michele Tassinari

Dear Ms. Tassinari;

December 8, 2009 is a state special primary election day, and apparently after discussing the matter with a Secretary of State representative over the telephone on Friday, I was told the day was both a state and town election day, provided a separate ballot is issued for local election issues.

Please accept this letter as a formal complaint against the Barnstable town council for a violation of Section 8.8 of the Barnstable Town Charter.  Following is the section in its entirety:

    Section 8-8 Recall of Elected Office Holders

     (a) Application

    Any holder of an elected office in the town, with more than six months remaining in the term of office for which the officer was elected, may be recalled there from by the voters of the town in the manner provided in this section. No recall petition shall be filed against an officer within six months after taking office.

    (b) Recall Petition

    A recall petition may be initiated by the filing of an affidavit containing the name of the officer sought to be recalled and a statement of the grounds for recall, provided that, the affidavit is signed by at least one hundred voters for any officer elected at large and at least fifty voters for any officer elected by precinct.

    The town clerk shall thereupon deliver to said voters making the affidavit, copies of petition blanks demanding such recall, copies of which printed forms the town clerk shall keep available.

    Such blanks shall be issued by the town clerk, with signature and official seal attached thereto. They shall be dated, shall be addressed to the town council and shall contain the names of all the persons to whom they are issued, the number of blanks so issued, the name of the person whose recall is sought, the office from which removal is sought and the grounds of recall as stated in the affidavit. A copy of the petition shall be entered in a record book to be kept in the office of the town clerk. Said recall petition shall be returned and filed with the town clerk within ten days after the filing of the affidavit, and shall have been signed by at least ten per cent of the registered voters of the town for any officer elected at large. For any officer elected by precinct, said recall petition shall be returned and filed with the town clerk within ten days after the filing of the affidavit, and shall have been signed by at least ten per cent of the voters from the precinct the officer to be recalled represents.

    The town clerk shall forthwith submit the petition to the registrars of voters in the town, and the registrars shall, within five working days, certify thereon the number of signatures which are names of registered voters of the town.

    (c) Recall Election

    If the petition shall be found and certified by the town clerk to be sufficient, the town clerk shall submit the same with such certificate to the town council within five working days, and the town council shall forthwith give written notice of the receipt of the certificate to the officer sought to be recalled and shall, if the officer does not resign within five days thereafter, order an election to be held on a date fixed by them not less than forty-five and not more than sixty days after the date of the town clerk's certificate that a sufficient petition has been filed;

provided, however, that if any other town election is to occur within sixty days after the date of the certificate the town council shall postpone the holding of the recall election to the date of such other election."

In this case the window of opportunity for the recall election is December 7 through 22.  Because of the 20% voter turnout requirement, the Barnstable town council, to protect one of its own, ignored the December 8th election opting for a Thursday election one week before Christmas Eve hoping for a low turnout.

In addition to discouraging voter turnout, and violating the town charter, the special election will cost the town $15,000.

While I'm not a lawyer, and don't profess to be one, I can read.

    Massachusetts General Law,

    Chapter 53 Section 28; CHAPTER 53. NOMINATIONS, QUESTIONS TO BE SUBMITTED TO THE VOTERS, PRIMARIES AND CAUCUSES.

    PROVISIONS APPLYING TO ALL PRIMARIES

    Notwithstanding any provision of law to the contrary, any town may hold its preliminary or regular town elections on the same date designated as the date to hold a presidential primary, in any year in which presidential electors are to be elected, provided that such election is by a ballot independent of the ballot used at a presidential primary.

While the text in the law refers to the election of presidential electors, the heading clearly states

“Provisions applying to all Primaries” as to questions to be submitted to the voters.

While a small group of us is contemplating a ten-taxpayer lawsuit to set aside the December 17th election date, we plan to exhaust all other remedies available to us under the law before proceeding.

Your prompt attention to this matter is appreciated as December 8th is virtually right around the corner.

To surmise;

Is the December 8th state primary election a town election as well?

Yours truly,

Gary Lopez

cc: Ruth Weil, Barnstable Town Attorney

Comments

[Mr. X]

In this particular instance, Gary Lopez is 100% correct.

[John Julius]

Gary:

FABULOUS! THANK YOU! I intend to file this same complaint tomorrow so they will have TWO to look at. I will also send this to my friend Martha Coakley. Maybe she MIGHT want a few EXTRA votes from Barnstable VOTERS!

Til now Martha Coakley never paid too much attention to my 'letters' but somehow I THINK THAT THE TIMING IS RIGHT ON THIS ONE!

gary, great post and you are a great American. Unfortunately there are NOT ENOUGH great Americans around these days!

Folks, WE NEED MORE GREAT AMERICANS!