Questions of candidate certification remain

State statutes questioned in recent board election

By Hope Lecchi - [email protected]

State statutes questioned in recent board election

By Hope Lecchi

[email protected]

Editor’s Note: This is the second article in a two-part series. The first article was published April 13.

On Monday evening, the Pettis County R-V Board of Education swore in its newly elected member and voted to reorganize the board.

It also accepted the resignation of Aaron McMains, who was elected to the board in the April 5 municipal election even though he was not eligible to run for office in the district.

The question of who determines who is eligible to file for office is at the heart of the matter and for each question answered, several more were raised.

“Unfortunately, the current process for verification of a candidates certification relies heavily on the sworn statement of the candidate and results in a form of an honor system, with nobody with the legal authority other than a court for determining whether a candidate meets some of the qualifications, including residency,” Duane Martin, attorney for the Missouri Ed Counsel wrote in an email to the Democrat. “This problem is one that has been the current topic of discussion in several contexts, including the verification of qualifications like a criminal background check.”

The Democrat has spent the last week investigating the matter of the responsibility of verification of a candidate and while there are differing opinions as to who may be responsible in the minds of many, there are clear answers in some regards.

A 2014 document published by the Missouri School Boards’ Association, which can be found on its website, outlines the process for anyone wishing to run for a school board.

The first section of the document, “Board Member Qualifications,” cites Section 162.291 RSMo.

The statute requires a director of most school boards to be a citizen of the United States, a resident taxpayer of the district, a resident of Missouri for one year next preceding the election, and 24 years of age.

The second page of the document goes on to state in the section titled “Resident Taxpayers and Delinquent Taxes,” The “resident” part of “resident taxpayer” is not ambiguous. Individuals must reside within the district in order to run for the board.

According to Department of Secondary and Elementary Education spokesperson Roger Dorsen, the responsibility to verify residency of persons living in a school district who attend schools in that district is the responsibility of the district.

“When a parent or guardian enrolls their child in school, it is their responsibility to provide the district with proof of residency,” Dorsen said by phone last week. “The district has the authority to request whatever information they would like of the parent to prove residency.

“The district will then know and can calculate if that information is accurate, but it is the district’s responsibility to verify that information,” he added.

In the case of the Pettis County R-V election, the McMains children did attend school in the district last year, but did so in violation of the residency requirements, as their property is not located in the Pettis County R-V District.

Since the children do not attend school in the Pettis County R-V District this year, Superintendent Dr. Cody Hirschi did not check on the residency of McMains this year when McMains decided to run for the board, assuming it was not an issue because it had not been in prior years.

As Hirschi said to the Democrat following the election, if previous administrators would have followed their responsibilities in checking on residency this could have been avoided; this is Hirschi’s first year in the district.

There are other checks other than residency that can be used to determine if a candidate is eligible for election, according to multiple sources the Democrat has contacted.

Missouri Secretary of State’s Office spokesperson Stephanie Flemming told the Democrat by phone that in matters of municipal elections, the Secretary of State’s Office does not have jurisdiction, rather jurisdiction lies with the county clerks to determine how the election will be hosted.

“Everyone thinks that the county clerks are the judge, jury and referee,” Jefferson County Clerk Wes Wagner said by phone Friday. “But we simply aren’t.

“It is our responsibility as a clerk’s office to host the election and as part of that we are responsible for providing the election officials the necessary information they need to make sure they turn in the proper information to us so we can prepare the ballots,” Wagner said. “We are responsible for printing the ballots based on the information we receive and for counting those ballots as soon as the polls close.”

Wagner, who also served in the Missouri House of Representatives and is familiar with state statutes, explained how the process works.

County clerks send information to each person responsible for candidate filing.

In the case of Pettis County elections, emails were sent on both Dec. 10 and Jan. 13 providing an election calendar and links to websites that contained ethics information and all required forms the election officials are to use.

The email stated, “As candidate filing is coming to a close, on Jan. 19, 2016, we wanted to remind you that the following paperwork will be needed to be emailed, mailed or brought in hand to the County Clerk’s Office on or before Tuesday, January 26, 2016 by 5 p.m.

• Declaration of Candidate for Nomination

• Form 5120 Candidate’s Affidavit of Tax Payments and Bonding Requirements

• Ethic’s Notice of Candidate

The e-mail continues:

“Below I have listed some valuable information you will need to know for Candidate filing.

“Click this link to verify the candidates who have filed are up to date with their taxes. If there are any discrepancies, please contact the Department of Revenue.”

“Once a candidate files, the election official in the district should use due diligence and take that step to see that the individual is not delinquent on their taxes,” Wagner said. “There are five business days between when filing closes and the election officials have to submit the candidate form to the clerk’s office and they have that time to verify all of the information as well.

“I always tell my officials why wait until the last week to do all of this but check on it whenever you receive any filings,” Wagner added. “Once they submit the names to us, we send them back for verification before printing the ballots.’’

All parties agree that once the ballots have been printed the only way to remove a candidate from a ballot is through a court action.

“The statutes pertaining to elections largely preempt a school’s district authority and are clear that the ability to challenge qualifications only lie in either a quo warranto proceeding by the Missouri Attorney General or county prosecutor or in a civil challenge by an individual filing a lawsuit seeking a court order,” Martin wrote.

“When a candidate files it is presumed that a sworn affidavit from the candidate is all that should be necessary for certification of candidacy,” Martin said by phone Tuesday afternoon. “There are always qualifications that would prohibit someone from not qualifying for office such as age or a person’s criminal history.

“One thing that could be done to avoid this from occurring in the future is that the general assembly could give the authority to vet candidates to one entity,” Martin added, “For clarity it seems to be something that would be best addressed by the general assembly because now the law doesn’t exist.”

The Democrat contacted state Sen. David Pierce, chairman of the Senate Education Committee, who indicated that in the current session there are no bills that address the issue.

“I’ve been in public service since 1995, and I have never seen or heard of anything like this situation,” Pierce said by phone Tuesday. “I do think that is it was an honest mistake based on what I have been told and (McMains) deserves to be applauded for his resignation and willingness not to be seated.”

As for the Pettis County R-V vacant seat, the board posted the following statement on the district website Tuesday:

“If you are interested in being considered by the school board for a position on the board, please contact the Central office prior to April 28th to submit your name.

“By board policy, the Board has the right to select, by majority vote, the candidate they feel would best serve the district.

“The board is required to interview no more than three individuals for the position. Interviews will be conducted in an open session during a special board meeting to be held on Thursday, May 5th at 7:00 p.m.

“The selected individual would be on the board until the next election which would be in April 2017.”

The district may be contacted at 827-0774 or 568-3315.

Hope Lecchi can be reached at 660-826-1000 ext. 1484

Hope Lecchi can be reached at 660-826-1000 ext. 1484

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