Concerns over how Commissioner Harry Stoltzfus’ unexpired term should be filled if he is recalled are raising questions about the recall election process.
Tom Aposporos, who chaired the last two city charter review committees, says that according to the charter, the city commission has the authority to appoint a successor, rather than the voters electing one.
Aposporos said in a memo to Mayor Fran Barford, City Attorney Jim Dye and Recall Committee Chairman Bob Carter he believes that when the recall is for only one person, the vacancy should be filled by the local government.
“Our city charter provides for the filling of a vacancy that occurs ‘in any manner authorized by law,’ as would be the case if in the event a single person is recalled from office,” Aposporos said. “I don’t think we should reject the possibility that the provision ‘that if only one member of a governing board is recalled from office, then the vacancy created by the recall is to be filled by the governing body according to applicable law’ does not apply to Anna Maria.”
City Attorney Jim Dye has said voters should select the person to fill Stoltzfus’ unexpired term if he’s recalled.
Either way, it all could be a moot point after a hearing before Judge Edward Nicholas on Thursday, Aug. 12, at 1 p.m.
Stoltzfus’ attorney Richard Harrison is challenging the recall petition itself claiming the language in the petition is so vague his client is unable to mount an effective defense.
During the hearing, attorney Fred Morse will represent the Recall Stoltzfus Committee, which is the group behind the recall effort.
Nicholas’ ruling could come as early as Thursday. Chief Judge Lee Haworth has set September 7 as the date for the recall election.
At this time, the ballot will contain questions about whether the voter thinks Harry Stoltzfus should be removed from office or not.
Voters also will be asked to select between either Gene Aubry or Stoltzfus himself to serve out the remainder of Stoltzfus’ term in the event the recall is successful.
Carter said his committee will be getting legal advice on Aposporos’ opinion concerning how the vacancy should be filled.
“I’ve thought that it sounds a bit like an oxymoron that someone can run for the very office from which they are being recalled,” Carter said.
He said the first step would be to see how Nicholas rules after Thursday’s hearing.
“If the recall goes forward, then we’ll get an opinion on this,” he said. “We’ll probably get someone to check into this immediately since these things take time, but if the judge stops the recall, then the issue is moot.”
Aposporos said he concedes he could be incorrect in his opinion, but he attached some secondary sources of information that he said the courts would accept in absence of case law on the topic.