On June 18, 2018, Councilman Tom Harrison's legal team filed a Writ Of Mandamus brief to invalidate the petition calling for a recall election for him. The lawsuit was filed against the City Secretary. The Mayor and the City Attorney, Page Mins, are also listed on the lawsuit. Councilman Tom Harrison's legal team makes a few arguments, in their brief, for why the petition is not valid. Argument one is the City Secretary abused her discretion by validating the recall petition with the wrong number of signatures. According to the Plano City Charter a recall petition, “shall be signed by qualified voters of the city equal in number to at least thirty (30) percent of the number of votes cast at the regular municipal election of the city.” The Secretary used the number of voters from the 2015 municipal election. That is the election Councilman Tom Harrison won his council seat in. The problem with using that number is, the Charter does not say to use the number of voters from the election in which the council member was elected. It just say, “at the regular municipal election of the city”. The last municipal election we had was in 2017. Councilman Tom Harrison's team says it is the 2017 election number that should be used. In the brief Councilman Tom Harrison's lawyer argues… “The Charter clearly does not require the voters to “look back” at the initial year of election. Such additional requirement of the City Secretary is not in conformance with the City Charter and is actually adding an additional requirement not found in the Charter. Such discretion by the City Secretary to add additional requirements to the Charter is a clear abuse of discretion and is void. In addition, if the City takes the position that the Charter intent is to apply a “look back” such interpretation is unfounded and is vague at best and is a desperate attempt to create a “smoke [and] mirrors” argument. Clearly the charter intent was to require a sample of the most current voters and not “look back” to years in the past. If the Charter intent was to “look back” at a time in the past it would have stated so. What is to stop the City from picking and choosing which data census of registered voters it wants to use.” In other words, what is to stop the City from “looking back” to an election held five, ten, or fifteen years ago? Argument two is the City Council voting on the recall election before Councilman Tom Harrison had a formal hearing. The lawyer for Councilman Tom Harrison states in the brief… “On or about April 9, 2018 the City Council voted to hold the recall election without giving Harrison the option of a formal hearing until April 23, 2018. The Mayor also made it impossible for Council member Harrison to be heard.” I wrote in my post on 5/15/2018 titled Battling Lawyers, Sec. 6.06 of the City Charter states, “Public hearing to be held: The officer whose removal is sought may, within five (5) days after such recall petition has been presented to the city council, requesting that a public hearing is held to permit him to present facts pertinent to the charges specified in the recall petition. In this event, the city council shall order such public hearing to be held, not less than five days and no more than fifteen days after receiving such request for a public hearing.” Then Sec. 6.07 says, “Election to be called: If the officer whose removal is sought does not resign, then the city council shall order an election and set the date for holding such recall election." In the law, there is a concept called Material Construction. This means that when rules are listed in a certain order they are to be followed in that order. By voting on the recall election before having a hearing, the council went out of order. Argument Three is the reason listed on the petition for the recall does not rise to the legal standard of incompetence, misconduct, or malfeasance. If you remember, the petition in question was started because Tom Harrison put a controversial post on his personal Facebook page. Some people were offended and started the recall petition. Section 6.01 of the Charter clearly says, “The grounds for removal from office are incompetence, misconduct or malfeasance in office.” Those three words have legal meanings. The definition of incompetence is, "The condition of lacking the power to act with legal effectiveness." The definition of misconduct is, "The unlawful conduct by an official in regard to his or her office." Lastly, the definition of malfeasance is,"The performance by a public official of an act that is legally unjustified, harmful, or contrary to law." In the brief Tom Harrison's lawyer argues… “At no time was any statement made by Harrison concerning City business and was not made in the course and scope of his position as Council Member. Also, Harrison stated that his action was personal in nature.” The brief also states, “Council member Harrison never showed any signs of incompetency, malfeasance or misconduct while in his official capacity and such efforts to circulate a petition was erroneous.” That leads us into argument four, the recall efforts were part of a political scheme by the Mayor and his followers to get rid of Councilman Tom Harrison. The brief states… “Council member Harrison has been outspoken regarding the motives and economics of the Mayor and City Council’s adoption of the comprehensive plan commonly known as the “Plano Tomorrow Plan. Put simply, the Plano Tomorrow plan is nothing more than a tool to allow the Mayor and city staff carte blanche to build and subsidize and approve any projects that big pocket commercial development contributors want. As a result of Harrison’s concerns and resistance to the Plano Tomorrow Plan, tensions between the Mayor, City staff, and Harrison grew and public support for Harrison and a grass roots effort has grown against the Plano Tomorrow Plan. As a result of Mr. Harrison’s concerns for the citizens of Plano and his opposition to the Plano Tomorrow Plan, the Mayor, city staff and the Mayor’s supporters have begun to target Council member Harrison and have tried desperately to silence him and actually went so far as to organize a petition drive to gather signatures to recall Council member Harrison. There is no doubt that these efforts were spearheaded by the Mayor and his supporters as the Mayor himself signed the recall petition along with at least one other council member, at least one member of the planning and zoning commission, as well as members of the Chamber of Commerce, all supporters of the Mayor and the Plano Tomorrow Plan.” While I don't disagree that the Mayor would love to get rid of Councilman Harrison, this last argument will be the hardest to prove. The City hired an out of town law firm to handle the case. Every time the City has a lawsuit filed it hires an outside law firm. I am beginning to wonder why we keep our own City Attorney on staff when she never goes to court. The lawyer hired to handle the claim is Andy Taylor. He filed a response with the court on June 26, 2018. In his response he lists reasons for why the court should deny the claim; these reasons are mostly based on technicalities. Reason one for denying the case, Mr. Taylor says is the Fifth Court of Appeals, doesn’t have jurisdiction to hear the case. The response states…. “[Tom Harrison] has an adequate remedy at law available to him in the Civil District Court.” In other words, Tom Harrison should have filed in District Court first. Mr. Taylor also makes the case that ..... “The only attempt to initiate legal proceedings was inexplicably brought 74 days after the Citizen Recall Petition was submitted, 69 days after the Special Recall Election was called by Plano’s City Council, and eight full weeks after a public hearing was called and held on this matter. Nothing in [Tom Harrison's] Mandamus Record [brief] explains the reasons for this untimely delay. Also, pursuit of mandamus relief is moot, given the passage of time and the fact that the City Council has already considered the Citizen Recall Petition and entered an ordinance calling for a Special Recall Election.” I don't see why any of that should matter. As long as Councilman Tom Harrison's team filed the case before the statute of limitations ran out, it does not matter how many days they took to file the case. Just because the City Council has called for a recall election does not mean Councilman Tom Harrison cannot go to court to stop it. In fact, Page Min (City Attorney) made it clear that the council did not have a choice in calling for the recall election after the petition had been verified by the City Secretary. Page Min also made it clear that the only remedy to stop the recall election was for Tom Harrison to go to court. Reason two, Andy Taylor sights, for denying the case is the wrong numbers were sighted in Tom Harrison's brief. In his brief Tom Harrison's lawyer said… “The number of qualified voters of the City based on the most recent data collected at the regular municipal election cycle is: 27,208” That number was only for Collin County. Plano is also in Denton County. The number of Plano voters in Denton County who cast votes in 2017 was not mentioned in Councilman Tom Harrison's brief. This argument is moot because adding additional voters from Denton County makes the number of signatures needed for the petition go up. Reason three for denying the case Mr. Andy Taylor lists is… “Relator’s [Tom Harrison] separate ancillary emergency motion seeks injunctive relief to enjoin both the City Secretary and the non-party City of Plano from submitting Councilperson Harrison’s name to the Texas Secretary of State for the upcoming General Election. Such relief, even if granted, would accomplish nothing. First, the upcoming November election for the potential recall of Relator is not a part of the General Election. Second, the Special Recall Election does not involve certification of any name to the Texas Secretary of State. To the contrary, submission is made to both Collin and Denton counties.” In other words, if Mr. Taylor is right, even though the recall election will be held during the November Midterm Election, Councilman Tom Harrison will not be on the Midterm ballot. His name will be listed separately. That listing will be made by Denton and Collin County, not by the TX Secretary of State. Tom Harrison's lawyers should have asked the court to prevent his name from being submitted to the Collin and Denton County Elections Departments to be put on the ballot. Again, I think this can be fixed by filing an amendment when Councilman Harrison's lawyer replies to Mr. Taylor's response. Reason four Mr. Andy Taylor gives for throwing out the suite is.. “Now that the election is underway, the Courts will not interfere with the political process at this time, rendering Relator’s [Tom Harrison] petition non-justifiable and potentially violates the constitutional separation of powers between different branches of government.” That is simply not correct. Courts, in the past, have stopped elections from proceeding. In March of 2018 the 4th Court of Appeals in San Antonio denied a writ of mandamus that sought to validate recall petitions for three Windcrest City Council members. The fifth and last reason to deny Tom Harrison's motion, Andy Taylor argues, is that the correct number of signatures was received. His argument is a bit long so bear with me. Mr. Taylor says… “After the adoption of an ordinance, citizens have a right under Plano’s City Charter to collect signatures on a petition requesting a referendum vote on the ordinance. Section 7.02 [of the City Charter] provides that: Said petition must be signed by qualified voters of the city equal in number to twenty (20) percent of the number of votes cast at the last regular municipal election of the city, or one hundred fifty (150), whichever is greater. Unlike Section 7.02’s reference to “last” regular municipal election of the city for referendum elections, Section 6.02 of the Plano City Charter referring to recall elections specifically omits the word “last.” More specifically, Section 6.02 of the Charter states that the "petition shall be signed by qualified voters of the city equal in number to at least thirty (30) percent of the number of votes cast at the regular municipal election of the city." The City of Plano first addressed this textual difference between referendum petitions and recall elections in September of 2015, it was incumbent upon the City to harmonize these different provisions in a manner such that neither provision would be rendered meaningless or mere surplus. Accordingly, in 2015, Plano applied neutral and objective rules of statutory construction, and ultimately concluded that the fact that the drafters included the reference to “last” in one provision for elections and not in another was intentional. Therefore, Plano concluded that the threshold for signatures for the recall provision contained in Section 6.06 of the Plano City Charter should be calculated on the number of votes in the regular municipal election at which an officer was elected. Plano’s interpretation has been included since February of 2017 in the recall petition instructions on Plano’s website.” In other words, since one part of the City Charter that has to do with petition elections has a reference to the last municipal election, but another part of the Charter does not have the words “last election” the City simply decided to amend the Charter without a vote from the residents. By the way, the only way for the City to amend the Charter is by election. However, instead of having an election, the city just amended it's website. Additionally, according to Councilman Harrison's lawyer, the problem with Mr. Taylor's argument was that the word “last” was left out on purpose in article 6, since it was added in Article 7. “Article 6 was drafted and last reviewed in 1988, a full 23 years before article 7 was added to the Plano City Charter. Thus, it cannot be said that the citizens were considering the words in article 7 when drafting Article 6, and the words in article 7 have no impact on interpretation of Article 6. The plain meaning of the words in article 6 are clear and are not ambiguous; and the word "last" was not in the non-existent article 7 at the time article 6 was written.” Interestingly, Mr. Andy Taylor did not refute Councilman Harrison's lawyers argument that the reasons listed on the petition for the recall do not rise to the legal standard of incompetence, misconduct, or malfeasance. Now the recall petition is in the hands of the court. They could take up to a month to review the case and come to an opinion. What will really be interesting is what the City will do if it looses the case. Will the City appeal or save the taxpayers money and accept the decision? This is Plano's Political Pit Bull Signing Off. You can read the full brief and all the responses at http://search.txcourts.gov/Case.aspx?cn=05-18-00700-CV&coa=coa05
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