Commission rejects recall petition language against Ludington mayor

January 31, 2024

Commission rejects recall petition language against Ludington mayor

By Rob Alway, Editor-in-Chief

LUDINGTON — The Mason County Election Commission unanimously rejected a Ludington resident’s attempt to apply for a recall petition against Mayor Mark Barnett today at the Mason County Courthouse. The commission, which consists of Chief Judge Jeff Nellis, County Clerk Cheryl Kelly, and County Treasurer Andrew Kmetz, held a clarity hearing in which it heard arguments from Tom Rotta on why he should be allowed to seek a recall against the mayor.

Rotta, of 137 E. Dowland St., filed a petition application with the Mason County Clerk’s Office on Jan. 16, claiming that Barnett is trying to hold a deer cull on his private property.

Rotta’s recall petition application stated: “At a 9-11-23 Ludington council meeting, Mayor Barnett, citing still-unsupported anecdotes, directed the council to move to create a plan for a deer cull in committee and bring it to council for approval before 11-1-23.  Moved and passed.  No plan was ever created, but council timely approved funding a cull for $19,500.  Barnett did not disclose that the public-funded cull would be held on his private property, within a school zone, nor has he got required school approval.”

The Michigan Election Law requires the Board of State Canvassers (for state and county-level offices, except for county commissioners) or County Election Commission (for all other offices) to review the language of a recall petition to determine it is factual and of sufficient clarity before the petition is circulated. The clarity/factual review is the starting point of each and every recall effort launched in Michigan.

The function of the County Election Commission, during the review, is to determine whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall. The officer whose recall is sought and the sponsors of the petition may appear at the meeting and present arguments on the clarity and factual nature of the petition language. The Michigan Election Law states that each reason for the recall shall be based upon the officer’s conduct during his or her current term in office. The commission does not have a the authority to rule on whether the petition includes good reasons for recall, as only the clarity and the factual nature of the recall language is subject to the commission’s review. If any reason the recall is not factual or of sufficient clarity, the entire recall petition shall be rejected.

Following nearly 20-minutes of testimony by Rotta, attempting to explain his reasons behind the application, Barnett was able to defend himself. Barnett read Rotta’s petition language then countered each point.

“I would like to address my concerns with the problematic portions of the proposed language as they appear in the sponsor’s statement,” Barnett said, standing in front of the commission.

“The sponsor begins the proposed recall petition language with the statement: ‘Mayor Barnett, citing still unsupported anecdotes.’ The language here is unclear as neither the wording nor the context allows the potential petition signer to know what the sponsor means by ‘unsupported anecdotes.’ What are the ‘anecdotes’ the sponsor is referring to? Why are they ‘unsupported?’ Is it because the sponsor does not agree with them? Is the potential signer able to determine if the sponsor’s assertion is based on fact or opinion?

“Number 2, the sponsor is advising the potential signers of the recall petition that Mayor Barnett ‘directed the council to move to create a plan for a deer cull in committee and bring it to council for approval 11/1/23.’ The sponsor used the term ‘directed’ the council. This language is confusing as it suggests that the mayor has the authority to ‘direct’ Council to act. A review of Sections 3.1 and 3.2 of the Ludington City Charter makes it clear that the mayor has no such authority over the Council.

“Section 3.2 states: ‘The mayor shall have an equal voice with all other members of the Council, but may vote only to break ties.’ The minutes of the meeting on 9/11/2023 referred to by the sponsor reveal that all seven councilors were present, thus there was no opportunity for the mayor to even vote on this issue.

“The Ludington City Charter makes it clear that governing authority rests with City Council in Section 3.1 wherein it states that: ‘The Council shall constitute the legislative and governing body of the City and shall have power and authority, except as otherwise provided in this charter or by statute, to exercise all powers conferred upon or possessed by the city, and shall have the power and authority to adopt such laws, ordinances and resolutions as it shall deem property in the exercise thereof.

“Once the Council decides to do something they direct the city manager to carry out that decision. This is made clear in Section 10.1, d (subsections 4, 9, 10, and 11) which describes the relevant powers and duties of the city manager.”

Barnett said that he also did not direct the council to create a deer cull plan. Barnett said the official minutes of the Sept. 11, 2023 City Council meeting state: “He (Mayor Barnett) asked Council to initiate a motion directing the Public Safety Utilities Committee to work with the city manager to create a plan for deer cull located in the City of Ludington.”

Ludington Mayor Mark Barnett

Barnett then stated that Rotta’s petition language states that “no plan was ever created.” Barnett said Rotta’s language is not clear “as is it immediately followed by language naming the price of the cull as well as a location where it would be carried out.”

“If it were true that ‘no plan was ever created’ this information would not exist,” Barnett said. “This language also ignores the fact that the deer cull plan had in fact been previously prepared by the city manager and approved by the Council. As author of the proposed petition language the sponsor is well aware of the deer cull plan as he has been a consistent opponent to that plan.”

Barnett then challenged Rotta’s claim about the cull being held on Barnett’s property.

“This wording is also confusing to the point of being misleading,” Barnett said. “It improperly leads the potential signer to the conclusion that the deer cull will only occur at a single site owned by myself, thus insinuating a use of public funds for personal gain. In reality, the cull will include four to five privately owned properties and two to three city owned properties Those sites were selected as that is where the deer frequent and where property owner’s permission was given.

“The sponsor’s petition states that another reason for my recall is ‘nor has he gotten required school approval.’ This wording is confusing as it infers that as mayor I have the duty to obtain school approval. As noted above, when the Council decides on an action Section 10.1, d makes it the responsibility of the city manager to carry it out. As mayor, it would not be my responsibility to obtain school approval for a cull approved by the City Council and implemented by the city manager. This would also hold true for all the owners of properties that would be included in the cull.

“Michigan state law requires that the petition language be clear before it is approved for circulation. If even one portion of the petition is not clear then the petition cannot be approved for circulation,” Barnett said.

“This review of the proposed recall petition language reveals at least six areas in which the petition lacks clarity. This lack of clarity serves to mislead the potential signers as to my responsibilities, actions, and motivation as a private property owner and as mayor. For these reasons I would ask that this commission reject this petition.”

The commissioners then asked Rotta questions. Commissioner Kmetz said he believed Rotta’s language stating Mayor Barnett was citing “still unsupported anecdotes” seemed to be more of an opinion that factual.

“He made several assertions that I read in the record,” Rotta responded.

Commissioners Kelly and Nellis also agreed with Kmetz.

“Each reason for the recall must be clear and factual,” Kelly said. “What are those unsupportive anecdotes you listed? In my opinion, in your explanation to Treasurer Kmetz, you said ‘I feel.’ That confirms that this section is a matter of opinion.

The commission then promptly voted and all three rejected the application.

Following the hearing Barnett said he was pleased with the commission’s ruling. He added that he questioned Rotta’s motivation behind the recall attempt, stating that Rotta seems to be using it as a way to attempt to recall elected officials who he disagrees with. Barnett cited the recall attempt by Rotta last year against City Councilor Les Johnson because Johnson voted for a topic that Rotta disagreed with.

Rotta did not stay to answer reporters’ questions.

Rotta has filed multiple lawsuits against the cities of Ludington and Scottville, along with individual elected officials over the past several years, costing taxpayers hundreds of thousands of dollars. The first such incident occurred after a Ludington police officer, under the command of Barnett, who was then police chief, ticketed Rotta for failing to stop his bicycle at several stop signs in the city. At that time, Rotta was serving as a Ludington firefighter.

Rotta was also behind a failed recall attempt against Scottville Mayor Marcy Spencer.

All elected officers in Michigan, except judicial officers, are subject to recall by the voters of their districts. An officer who is being recalled may continue to perform the duties of his or her office until the result of the recall election is certified, according to the Michigan Election Officials’ Manual, published in July 2021.

The Michigan Election Law states that a recall petition shall not be filed against an official during the first six months or last six months of the officer’s term of office, if the term of office is two years or less; or during the first and last years of the officer’s term of office, if the term of office is more than two years.

Barnett, who served the city of Ludington for 19 years before retiring in 2020, was elected mayor in November 2022 with 58% of the votes defeating incumbent Steve Miller.

The number of signatures needed to trigger a recall election is 25 percent of the votes cast in the officer’s district for all candidates for the office of Governor in the last gubernatorial election, which would be based on the November 2022 election.

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