Wednesday, March 11, 2015

 
 
A SIMPLE NONCONVOLUTED ANSWER TO A SIMPLE QUESTION

The following provision of the City Charter has been raised as a possible bar to some of  the candidates for city commission and mayor.

"Any eligible person placed in nomination as hereinbefore provided shall have his name printed on the ballots if within five (5) days after notification to him by the city secretary he shall have filed with such secretary a written acceptance of the nomination"

State law makes clear Home Rule law on this issue governs.

Sec. 145.097.  HOME-RULE CITY CANDIDATE.  Provisions governing the withdrawal, death, or ineligibility of candidates for city offices prescribed by a home-rule city charter supersede this chapter to the extent of any conflict, except that this subchapter prevails in regard to an election subject to Section 145.092(f).

Texas law is clear, the city charter on this issue governs.

But I fail to see the problem for all of candidates - According to the City the deadline to file was February 27, 2015.  Under the city charter the deadline for the city to certify the candidates was March 6, 2015 - 5 days later.

Click for deadlines

Here is the key:

"Within five (5) days after the filing of a nomination petition the city secretary shall notify the person who filed such petition whether or not it is found to be signed by the required number of qualified voters."

Brownsville City Charter

The rule of thumb is if a deadline is 5 days then it does not include weekends or holidays.  I checked the charter and government code and cannot find a rule which states how to calculate the 5 days one way or the other.

So here is the deal, anyone who filed on February 27, 2015, and was notified on March 6, 2015, they qualified for the ballot, will have until March 13, 2015.

The unanswered question is, which candidates if any received their letter accepting their petition on March 6, 2015.  Without having access to those letters with the date they were sent out, we have no way of knowing who may or may not have followed the rule.

Then there is the mailbox rule - this rule means something is filed based on the post mark date.  The mailbox rule does not always govern.

The mailbox rule also means if something is mailed to you and you must file a response, you get an extra 3 days to file your response.  This would mean if the letters were mailed the candidates would have 8 days from the date of mailing to file their acceptance letter.

8 comments:

Anonymous said...

Bobby can you explain this to us non-attorneys? http://www.brownsvilleherald.com/news/valley/article_8b242712-c863-11e4-99c3-5f7d79f53205.html

BobbyWC said...

Sorry I did not see your post

Years ago a bogus organization called the Republic of Texas did the same thing.

They would create bogus liens and judgments against people and file them with the county clerk. They ended up on people's credit reports. In some cases they tried to execute on the liens.

I was caught up in it and had to file bankruptcy to stop them. They pulled back and I voluntarily dismissed my bankruptcy - all of my creditors were paid.

But they made a mess for everything they targeted.

This is just a repeat - the courts will handle it and if anything appears on anyone's credit report it will be cleared.

I am surprised the mother was dumb enough to be part of it

We need strong criminal penalties for this. A minimum of 10 years will deter this in the future

Again sorry for the delay.

I am buried and stressed. I just finished a big project for my brother. A little break and then on to an appellate brief due.

2:21 I have not eaten or showered.

Shower then a late lunch then back to work

Bobby WC

Anonymous said...

So, today is the deadline to accept nomanations. Does this mean that this loosers can't run after all Bobby. You should try to keep them all off the ballot if they can't follow a simple law. Nobody cares in this town. If they can't pay attencion to this rules how can they meet other deadlines. Nobody cares.

BobbyWC said...

On Monday I will do an open records request for all notices to the candidates and all letters of a acceptance. But I do not know if the mail box rule applies - So if the notice was mailed on the 3rd - then under the mail box rule it would be considered received on the 8th, which would then give then until the 13th to mail it back. It would then have to be received by the 16th.

I need to find out if it is 5 business days - that would be the general rule - also the mailbox rule sometimes applies and sometimes does not -

BObby WC

Anonymous said...

Dollars to donuts, you'll find few to no acceptance letters filed by any of the candidates. What you will find filed with (or even before) their petitions, however, are applications for candidacy.

Is the charter-referenced acceptance of nomination implied in these applications, particularly if they've been filed by the candidates themselves?

I'd expect it is. And the fact that these implied acceptances of nomination were filed BEFORE qualification is of little relevance.

In other words, the spirit of the charter provision requiring acceptance of nomination primarily applies to those candidates whose nomination & signature petition drives were completed by folks other than the candidate. Thereby necessitating an acceptance of successful nomination by the candidate ex post facto.

IANAL, BIPOOTV.

BobbyWC said...

At an intellectual level you are 100% correct - why would you submit the petition if it is not your intent to accept the nomination.

The city charter language is just plain stupid. But in law if you ignore the second part of acceptance then you are making it meaningless - and this the courts cannot do.

Do I think anything will come from this - no - if anyone raises the issue the argument you are making will be used to justify keeping everyone - no one has the resources to go to court to address the matter - so the deal is done.

Those is also the question of, in the notice to the candidate their petition has been accepted did the city tell them they had 5 days. I can assure you the notice provision is as important ss responding. If the letter tells them they must accept in 5 days - I believe a court would enforce the provision.
But if the notice fails to note the 5 days - then the court will say the city failed to give the candidates notice

Bobby WC

Anonymous said...

Interesting story. Regardless of whether the city staff messed up the notice, isn't it still in charter? Ignorance of law is no excuse right? The charter language is black and white for the people who are running anyways. What am I missing?

Anonymous said...

"What am I missing?"

What you're missing is how terribly seat-of-the-pants city staff operations are nowadays; particularly since of late, Sossi has been mailing it in with any legal advice or direction for his clients.

Everyone was ignorant of the charter provision. Staff, legal and candidates, alike. Nothing will come of it, like BWC wrote. Move along, nothing left to see. Business as usual at CoB.