Townsend files lawsuit contesting Bear Creek municipal election

BEAR CREEK    -   Bear Creek resident Mark Townsend has filed a lawsuit in Marion County Circuit Court contesting the town’s Aug. 25, municipal election for mayor and council, claiming the election was illegal because the town clerk had not been legally authorized to conduct the election, among other claims.
Townsend, a candidate for place 2 on the Bear Creek Town Council in the Aug. 25, municipal election, was defeated by Eric Loden. Also defeated in that race was Lamar Dickerson.
Townsend noted the claims in his case, filed Sept. 8,  are based on a case from Hodges in 2007, where an election was contested. At that point, Townsend said, judges in an election contest can only rule on statutes from the Code of Alabama.
“I challenged this election based on two statutes,” Townsend said. “They (in Bear Creek) did not canvass the election at 12...They did not do that. They did not do that until 5:30, 6 o’clock.”
Townsend was referring to point 5 in his lawsuit claiming that election rules were broken by not canvassing the election by noon on Sept. 1, according to law.  Instead, the town canvassed the election results at 5:30 p.m. that day during a special-called meeting.
Townsend, also in his contest of election, questioned how Bear Creek Town Clerk Jamie Green was hired in May, 2018.
“The city clerk plays a big part in the election.  They are really the most important person in a municipal election,” Townsend pointed out.
“Find the resolution where they made her the clerk. There is no resolution where they made her the clerk,” Townsend further stated.
“Did they vote for her? Yes, but the statute said it had to be done in resolution form,” Townsend further claimed. “So, really, Bear Creek has a bigger problem than this election because that makes her as city clerk illegal all the way  back to the time they made her the city clerk.
“That means none of the minutes she has ever signed are any good,” Townsend continued. “That means everything she has done for the election ain’t any good.”
Other claims in Townsend’s contest of  the election are that one of the mayoral candidates was the town’s fire chief, who resigned from that position.
Shane Cook, attorney for the Town of Bear Creek, did not address the claims in Townsend’s lawsuit directly when approached by the Alabamian.  He did offer the following statement regarding the lawsuit.
“We have confidence that the election in Bear Creek was executed in a proper manner and will address any legitimate concerns being properly brought forth in the correct legal setting,”  Cook said.
Rob Taylor confirmed with the Alabamian that he resigned as both fire chief and part-time water employee before he qualified to run in the election as mayor. Taylor is facing incumbent Tammie Batchelor in the Oct. 6, run-off election.
Townsend also claims that a total of five town employees were on the fire department when running for mayor or council seats  but never took a leave of absence as they were required to do according to the Town of Bear Creek Personnel Rules and Regulations, Townsend further claims.
“We found codes from the IRS that said they are employees because they get checks directly from the town,”  Townsend said.
However, Taylor, who continues his duties as a volunteer firefighter in Bear Creek, confirmed that these five members of the fire department are not paid employees of the town.
“The council doesn’t appoint firefighters,” Taylor said. “They are voted on  by their peers in the fire department.
“We’re not employees,” Taylor continued. “We’re 100 percent volunteer firefighters.”
Also, Taylor said these five members of the fire department have filled out and filed with the town notices that they would not accept any reimbursements or receive any type of funding from the fire department while holding office.
Lori Lein, general counsel with the Alabama League of Municipalities, addressed specific claims made in the lawsuit.
If a fire chief, for instance, is elected mayor, he cannot serve both as mayor and fire chief, so he would have to resign at that time, Lein explained.
“But there’s no action on the part of the council to do anything about that,” Lein pointed out. In other words, a mayoral candidate resigning as fire chief does not require a vote of the council, she explained.
“Any officer or employee of a municipality is eligible to run for office,” Lein added. “From the day they qualify, however, they have to go on administrative leave during the campaign. They can’t be working and campaigning at the same time.
“Once they are declared the winner, they can then work until such time as when they take office because they can’t hold both positions,” Lein continued.
“Once they take office, they would have to formally and officially resign from their position with the city,” she noted.
“There is no council action. A person is free to resign at any time,” Lein continued to explain.
“Employees who want to run for office have to take a leave of absence from the day they qualified  as a candidate,” Lein said.
“Just like the fire chief, whether you’re an officer or an employee of the city, the law allows you to run for office,” Lein continued. “However, an employee of the municipality you are running for office for, the law requires you to have to take a leave of absence during the campaign.”
Townsend claimed in his lawsuit that one of the candidates is under contract to the town, that the town pays his salary in accordance with Alabama Code 11-43-12.
The Alabamian checked that specific code, which reads, “No alderman or officer or employee of the municipality shall be directly or indirectly interested in any work, business or contract, the expense, price, consideration of which is paid from the treasury, nor shall any member of the council or officer of the municipality be surety for any person having a contract, work or business with such municipality for the performance of which a surety may be required.”
The claim that the town clerk’s hiring was done illegally because there was either no resolution or immediate consideration, was according to Alabama Code 11-44B-6 in Townsend’s lawsuit.
That  Code reads, “except for the purpose of inquiry, neither the council nor any of its members shall either publicly or privately supervise, order or give directions to an employee of the city.
“The municipal government of any city proceeding under this article shall be known as the mayor-council form of government,” the Code continued.
The Code continued to explain, in general terms, that an affirmative vote of a majority of the council members present and the mayor in the event of a tie, shall be sufficient for the passage of any resolution,  by-law, or ordinance of transaction of any business of any sort by the council.
The Code also gives in general terms the process of how a council should pass a resolution or ordinance, with such resolution or ordinance not to be passed or otherwise become law unless on its final passage, it has the affirmative vote of at least four council members or a vote from the mayor to
break a tie vote.
Minutes from the May 30, 2018, special-called meeting, noted the purpose of the meeting was to discuss the impending retirement of the city clerk and to discuss combining the city clerk and water clerk’s job into one position.
Council member Jimmy Preston made a motion to name Green the water clerk and interim city clerk and allow her to do both jobs for a period of time to see if she could handle the job, according to the minutes.
Preston also proposed a raise of $200 per week starting July 1. Chris Gillum seconded the motion, and all council voted in favor.
Lein noted that a town clerk has many roles, one of which is overseeing a municipal election.
Concerning Townsend’s claim the town did not canvass the election results until 5:30 p.m. on Sept. 1 instead of noon, Lein responded the penalty for failing to canvass the results is a court order to canvass them.
“They already canvassed them at 1 o’clock, so no harm, no foul,” Lein stated. “The failure of a city to canvass, the law says they had to canvass at noon. We had many (municipalities) that couldn’t get a quorum at noon, and they didn’t canvass until that evening when they had their regular meeting.
“Given the fact they did canvass, even though it was late, per the statute, that doesn’t invalidate the election,” Lein pointed out.
“The law is really weird there, because the law says that the board of registrars has until noon on that day to deliver the provisional ballot lists, and they are supposed to commence canvassing no later than noon,” Lein said.
Townsend noted that claims he  made in his contesting of the municipal election fell under law, that a candidate has five days to contest the election, after the results have been canvassed. Since the election results of the town of Bear Creek were canvassed on Sept. 1, Townsend did not file his lawsuit until Sept. 8.


See complete story in the Northwest Alabamian.
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