Lawsuit will continue to try to fill 1st District, at-large seat

Human rights activist Alvin Sykes said that the lawsuit asking the Unified Government to fill a vacant 1st District at-large seat will continue, despite the failure of a vote taken Aug. 7 on reopening the process.

Sykes said the effort to fill the seat is picking up steam. The seat has been vacant for more than a year.

During the Aug. 7 meeting, Mayor Mark Holland said, in his view, this would be the last opportunity to address the issue before it goes to the voters at the polls next spring.

Now that the commission has not voted to move the process forward, state Sen. David Haley will be calling a community meeting of area state legislators, commissioners and others on the issue, Sykes said.

A case has been filed by a 1st District at-large resident, Carolyn Wyatt, asking a court to order the UG to fill the position. Recently, Wyatt asked for summary judgment.

On Aug. 7, the vote was 5-4 in favor of reopening the voting and leaving out the top two vote-getters, but six votes were needed for it to pass. While UG officials said that the vote last week was a good-faith effort to fill the seat, the statement that this would be the last vote drew a reaction from Sykes.

“It’s now crystal clear they have no intention of filling the seat,” Sykes said.

Sykes said that “quality justice” in this case would mean that a coin toss is used to select one of the two finalists, Don Budd Jr. or Nathan Barnes, or that commission voting continues on Budd and Barnes until the tie is broken.

“Practical justice” would be starting all over and allowing anyone in the 1st District, at-large, to file for the seat, whether they are on the previous list or not, Sykes said.

“We’ll take either one” (practical or quality justice), he added.

Sykes cited several cases of municipal governments that had continued voting until the tie was broken and someone was selected to fill a vacancy. One city in Maryland took more than 100 votes before someone changed a vote. It took Wichita 38 votes before it filled a vacancy.

There were fewer than 10 separate votes to fill the vacant seat on the UG Commission. The commission could not get six votes, the majority that is needed, for one of the candidates on any of the ballots. Three votes were taken on June 20, 2013, with five votes for Budd and four for Barnes each time, with the mayor then voting for Barnes, ending 5-5. On July 11, 2013, another vote was taken, with the same result. Then, the mayor made a motion on July 11 to set the top two finalists aside and choose two others from the 15 finalists. That motion was defeated 7-2.

The UG charter says the vacancy “shall” be filled by an appointment by the commission, but it did not say when the position must be filled, and neither did it say how a tie could be broken. The charter does not say that a special election can be held to fill the vacancy.

The UG answered Wyatt’s court request for filling the seat by saying that it is “discretionary.” The UG answer also said the mayor and commission made a good-faith effort to fill the seat, but no candidate received the six votes necessary. The UG stated the appointment was a political question, and that the UG had the authority to determine the manner of selection under the state’s home rule amendment. The UG also stated that the plaintiff lacked standing to show that any injuries were specific and peculiar to her.

Besides being disappointed that the proposal for filling the seat at the Aug. 7 meeting did not include Budd and Barnes, Sykes said he is also disappointed that other UG commissioners did not use their authority to introduce other motions once the mayor’s motion failed. He said he believed that once a discussion is started on an item, any of the commissioners could then introduce alternative motions that are on the topic. While the mayor sets each agenda, runs the meeting and recognizes commissioners who want to speak, Sykes said he believes commissioners could introduce the topic at later meetings under the category of “old business.”

While there was a remark made at the UG Commission meeting about a lawsuit not being the way to resolve it, Sykes said that all citizens have the constitutional right to seek redress and petition the government for justice. He added the UG Commission had given very little opportunity for citizens to speak their minds at the UG public commission meetings about how they felt about this position not being filled yet.

“It’s a shame that we had to file a lawsuit for the public to have an opportunity to get their point across,” Sykes said.

“Citizenship is based on equality for everyone,” Sykes said. “The 2nd District at-large has the mayor, the at-large position and the district representative. People in the other district (1st District at-large) are still one short in terms of representation. Ultimately, everyone suffers.”

He said that “taxation without representation” hits the core of the issue. In some state legislatures in other states, if a representative position has been vacant for a prolonged time, there have been proposals for tax credits to be given to residents as a remedy for being without representation, Sykes said. However, that idea has not yet been implemented in the other states.

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