Secretary of State says Ms. Chaffin wrong

On June 4, Ms. Chaffin declared Mr. Fleming ineligible citing a provision in the election code that allows a a presiding officer to declare a candidate ineligible,"Facts indicating that the candidate is ineligible are conclusively established by another public record." However, the Secretary of State office position is clear THERE ARE NO PUBLIC RECORDS THAT CONCLUSIVELY ESTABLISH RESIDENCY

From: Melanie Huff [mailto:MHuff@sos.state.tx.us]
Sent: Tuesday, September 29, 2009 3:38 PM
To:
Subject: Candidate eligibility.-

Dear CONCERN CITIZEN

Thank you for your inquiry. I understand your question to be: Based on the wording of Section 145.003(f) of the Texas Election Code and the information set forth on administrative declaration of ineligibility on the Texas Secretary of State’s website, is it correct to conclude that it would be improper for the presiding officer (of the canvassing authority) to declare a candidate ineligible for not being a resident because no public record exists to conclusively establish residency?

The statement on the SOS website, “NOTE: No public record conclusively establishes residency,” correctly states the position of this office. This position is based upon Section 1.015(b) of the Texas Election Code. There is at least one case holding that public records conclusively established residency. See Nixon v. Slagle, 885 S.W.2d 658 (Tex. App. – Tyler 1994) (orig. proceeding). And there are other cases holding that records relied on to find a candidate ineligible either were not public records or that the public records presented did not conclusively establish residence. See Garcia v. Carpenter, 525 S.W.2d 160 (Tex. 1975); In re Tolliver, 2002 WL92919 (Tex. App.- Dallas 2002) (orig. proceeding) (not reported in S.W.3d); In re Jackson, 14 S.W.3d 843 (Tex. App. – Waco 2000) (orig. proceeding); Texas Dem. Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006).
I hope you find this information helpful. 

Melanie Huff 
Staff Attorney 
Elections Division Texas
Office of Secretary of State 
1.800.252.8683

Inquiry made of Texas Secretary of State Regarding Fleming Case

Yesterday a member of the CFBISD Network made an inquiry of the State Secretary of State Office to advice if it was proper under the election code for Ms.Chaffin to declare Mr. Fleming ineligible.

On June 4, Ms. Chaffin declared Mr. Fleming ineligible citing a provision in the election code that allows a a presiding officer to declare a candidate ineligible,"Facts indicating that the candidate is ineligible are conclusively established by another public record." However, According to the Secretary of State's website No public record conclusively establishes residency.

On Sept 21, the 95th District has already ruled that Ms. Chaffin did not provide a public record that conclusively establishes that Mr. Fleming was not a resident. Ms. Chaffin is currently appealing the decision.

The Secretary of State is the chief election officer for the State of Texas. Section 31.004(a) of the Texas Election Code (the "Code") provides that, "The Secretary of State shall assist and advise all election authorities with regard to the application, operation, and interpretation of this code and of the election laws outside of this code."

The member of CFBISD Network asked the Secretary of State's Office to answer the following question: "According to the State Election Code, after the canvass is completed and the but prior to the issuance certificate of election, the presiding officer may declare a candidate ineligible if the information on the candidate's application for a place on the ballot indicates that the candidate is ineligible for the office; facts or indicating that the candidate is ineligible are conclusively established by another public record. On the SOS website, see link below, indicates that no public record conclusively establishes residency. Therefore is it correct to conclude that it would it would be improper under Sec. 143.003(f) for a presiding officer to declare a candidate ineligible for not being a resident, since no public record exist to conclusively establish residency? Could you direct me to any SOS or SAG or trial opinions, to support your answer. http://www.sos.state.tx.us/elections/laws/candidacy.shtml"

The Secretary of State will occasionally issue advice in the form of an official election law opinion. Generally, election law opinions are reserved for interpretations of election law that will have a significant impact on the election process. As a result of this provision and similar language contained in sections 31.001 and 31.003 of the Code, the Secretary of State responds to election-related requests from officials charged with election-related responsibilities. Individuals with duties of this nature include (but are not limited to): Election Administrators; County Clerks; Voter Registrars; City Secretaries; Early Voting Clerks; City Councils; Mayors; School Boards; County Commissioners; and County Judges*

I would hope that the CFBISD Board of Trustees would seek a legal opinion from the Secretary of States Office prior to pursuing additional legal action.

A rebellious school board

The Daily Texan

A rebellious school board

By Douglas Luippold
Daily Texan Columnist
Published: Thursday, September 24, 2009
Updated: Thursday, September 24, 2009

Political intrigue has arisen in the Carrollton-Farmer’s Branch Independent School District in Dallas. During a school board election in May, tax adviser Richard Fleming received 52 percent of the vote and defeated school board president John Tepper to become the first African-American elected to the C-FBISD School Board of Trustees. Five months and two lawsuits later, Fleming has still not been seated on the board.

That politics are at play during something as theoretically ingenuous as a school board election is troubling, disrespectful to voters and speaks to greater concerns about elected officials’ treatment of public education in Texas.

The trouble began in C-FBISD when a resident of the district filed a lawsuit to prevent Fleming from assuming the position to which he was elected. The lawsuit claimed that Fleming did not reside within the district and was therefore ineligible for a place on the school board. It was quickly dismissed on a technicality and Fleming took the oath of office.

But before he was seated, the new board president, Lynn Chaffin, issued a “formal declaration of ineligibility” against Fleming and prevented him from taking his place on the board. She, like the lawsuit, cited a land survey performed after the election finding that Fleming lived 17 feet outside the district, according to The Dallas Morning News.

Fleming subsequently sued the school district. On Sept. 21, State District Judge Ken Molberg ruled in his favor. The judge ordered the C-FBISD school board to immediately seat Fleming. In his decision, Molberg deemed Fleming to have lived within boundary lines at the time of the election. Court documents also state that Fleming pays local taxes and that nieces and nephews who lived with him all attended C-FBISD schools.

The school board, which has demonstrated no guise of impartiality, responded to the judge’s explicit decision by issuing a statement saying it is “reviewing the judge’s order” and consulting with its attorneys.

Throughout the litigation, the board engaged in a series of political maneuvers that grossly undermined voters. School Board President Chaffin served as vice president of the board under then-President John Tepper. When Tepper lost the election, he nominated Chaffin to replace him as president and the board elected her. She then invalidated the election Tepper lost and called for a November special election for the seat. The school board subsequently appointed Tepper to retain the seat from which he was ousted until the special election commenced. This type of discord sets a bad example for students and hurts public schools. The board has failed to uphold a standard that students should strive for, essentially saying through its actions that ignoring an authority’s decision simply because it does not mirror its own is appropriate conduct. Is a school board that brazenly disregards voters and a district judge in a position to reprimand students for disobedience toward educators?

To be sure, it is unlikely that a ninth grader will argue “But the school board did it!” as an excuse for insubordination. That said, it is hypocritical for the leaders of an institution as hierarchical as a school district to ignore their superiors while expecting deference from teachers and principals.

This issue has implications for education in Texas that extend beyond C-FBISD. Public education has become extremely politicized in Texas in recent years. This election issue, the controversy over social studies textbook content and the debate over sex education serve as examples of leaders using schools to advance ideological or personal ambitions.

Hopefully, this is an isolated incident, because public schools certainly have enough educational problems without the injection of this type of power politics.

Luippold is a government junior.

Carrollton Leader Article Four residents file for special trustee election

Star Local News Carrollton Leader News special trustee election Candidate Backgrounds

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"expeditious"

At last night's board of trustee's meeting, the board adopted a resolution directing the district's attorneys to work toward the "expeditious" resolution of would-be trustee Richard Fleming's case before District Judge Ken Molberg. Wouldn't have been more "expeditious" to allow Mr. Fleming to serve in the first place? What I do not understand is why Ms. Chaffin and the Board of Trustees felt so compelled to deny Mr. Fleming an opportunity to serve. He was certified by the district as candidate for the May 9, election. According to the election code he had to meet the residency requirements 62 days prior to the election which was March 9th. On March 9th, Mr. Fleming had been considered a resident of the district. In fact, the district had assessed and collected taxes on the location of Mr. Fleming residence for past 23 years. Mr. Fleming, as lived, and paid CFBISD taxes at this location for four years. After qualifying for the ballot and prior to the election, the Denton County Central Appraisal District received an "anonymous" tip, that lead to the discovery the map that that the school district, the Dallas County Central Appraisal District, and the Denton County Central Appraisal District used to determined Mr. Fleming's residency was in error by 17 feet. As a consequence, his residency was changed to Lewisville ISD. The subsequent discovery of the mapping error and change in Mr. Fleming's residency status, does not change the fact that on March 9, his official residency status was CFBISD and had been for a least 60 days as required by the state election code. Although, officials at the District now admit they were aware concerns regarding Mr. Fleming's residency prior to the election, including the change in residency by the Denton CCAP. The proper election authority did not challenge the eligibility of his candidacy prior to he election, as required by the state election code. It is clear that Mr. Fleming did win the election on May 9th. It is also clear that residency requirements must be met by the last day candidate s permitted to file for the ballot. There can be differing interpretations of the state election code, Ms Chaffin may disagree with my interpretation. Hopefully, we can all agree that in a democracy, a presiding officer should not over-turn an election without an absolutely compelling reason do to so. It is troubling that the District would continue spend precious resources on the Mr. Fleming matter. Mr. Shor is right, let the court decide, as expeditiously, as possible.

State Attorney General....Opportunity Loss...

It is unfortunate that the board of trustees did not seek an advisory opinion from the state attorney general’s office related the Richard Fleming case , prior to any actionor litigation. According to the state Attorney General's website :“An Attorney General Opinion is a written interpretation of existing law. The Attorney General writes opinions as part of his responsibility to act as legal counsel for the State of Texas. Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, courts have stated that Attorney General Opinions are highly persuasive and are entitled to great weight. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts.” CFBISD has sought Opinions from the state attorney general office in the past. An AG opinion may have prevented the expense of prolong ligitgation. The Attorney General is relucant to issue an opinion, once ligitgation has begun. Perhaps the Board of Trustees felt that seeking an opinion was no longer an option once an restraining order was filed by Stan Ingram. http://carrolltonblog.dallasnews.com/archives/2009/05/carrollton-resident-who-filed.html Mr. Ingram, released statement through his attorney as to motivation for the restraining order, "I believe the boundary, election and tax issues are of legal nature and need to be decided by our State legal system. I have no personal or professional preferences over the outcome. I want it to be fair, legal and quickly resolved." Mr. Ingram should be pleased,the District and Mr. Fleming are engaged in a bitter legal battle, which may take years and tens, possibly hundreds, of thousands of dollars to resolve. Did Mr. Ingram really believe that once the question of Mr. Fleming eligibility was referred to the State legal system that the issue could be "quickly resolved?" It is unfortunate that in time of multiple year tax budget deficits and cuts, the District finds itself in expensive and tie consuming legal battle. No one can predict the outcome of Richard Fleming V. Carrollton Farmers Branch Independent School District, however, it is apparent that resources that could be dedicated to education are now diverted to the pockets of trial attorneys. It is unfortunate, that Board of Trustees missed an opportunity to resolve the issue of Mr. Fleming's eligibility fairly, legally, and quickly with out embroiling the issue in the quagmire of that is the State legal system.

MYTH: A Board of Trustee Member has to be a Resident of the District.

MYTH: A Board of Trustee Member has to  be a Resident of  the District.
 The state law does NOT require that a individual be resident of a district to serve on the Board of Trustees, the law does, however, require an individual seeking election to the office of Trustee by having his or her name placed on the ballot must have been a resident of the state for 12 months, and a resident of the District for six months, prior to the last date on which the candidate could file to be listed on the ballot. The filing deadline for the May 9, 2009 election was 62 days prior, or March 9, 2009.

In simple terms, a board of trustees candidate that files  an application and is placed on the ballot, than subsequently changes residency to a different the school district prior to the election, then wins the election is eligible to serve on the board of trustees.

The key question for determining whether or not if Mr. Fleming eligibility to serve school board trustee in the Carrollton Farmers Branch Independent School District is: As of March 9, 2009 was of Mr. Fleming a resident of Carrollton Farmers Branch Independent School District for the sixty-days preceding March 9.

The secretary of the board of the trustees did certify Mr. Fleming's candidate application. The secretary of the board of trustees did not challenged Mr. Fleming eligibility prior to the May 9, 2009 election. Thus the district did certify that Mr. Fleming meet all requirements as a candidate.

All records of school district and the appraisal district as of March 9, 2009, clearly that indicate that Mr. Fleming was indeed a resident of the district and had been for the six months prior to March 9.

If a candidate is eligible to serve, when the candidate is qualified for the ballot and is elected, but subsequently to qualifying for the ballot and prior to the election  voluntarily changes residency, than certainly a candidate who is qualified for the ballot and is elected, but subsequently has his or her residency status changed involuntarily by government agency is eligible to serve.


ELECTION CODE

§ 144.004. AUTHORITY WITH WHOM APPLICATION FILED.  Except
as otherwise provided by law, an application for a place on the
ballot must be filed with the secretary of the political
subdivision's governing body or, if the governing body has no
secretary, with the governing body's presiding officer.

§ 141.001. ELIGIBILITY REQUIREMENTS FOR PUBLIC
OFFICE.  (a) To be eligible to be a candidate for, or elected or
appointed to, a public elective office in this state, a person must:
        (1)  be a United States citizen;                                             
        (2)  be 18 years of age or older on the first day of the
term to be filled at the election or on the date of appointment, as
applicable;
        (3)  have not been determined mentally incompetent by a
final judgment of a court;
        (4)  have not been finally convicted of a felony from
which the person has not been pardoned or otherwise released from
the resulting disabilities;
        (5)  have resided continuously in the state for 12
months and in the territory from which the office is elected for six
months immediately preceding the following date:
(B)  for an independent candidate, the date of the
regular filing deadline for a candidate's application for a place
on the ballot;

BOARD OF TRUSTEES SPECIAL ELECTION INFO

C-FB ISD Board of Trustees Special Election Information