Barton County Attorney Doug Matthews late Friday afternoon rejected the petition filed to recall all the members of the USD 428 School Board, noting problems with the filing itself and because the allegations made were legally insufficient to warrant such action.
Matthews made his opinion known in a letter to County Clerk Donna Zimmerman. The letter was also sent to the members of the school board and those who had filed the petition.
According to state law, recall petitions for elected county officials are filed with the County Clerk’s Office which forwards them to the county attorney, whose responsibility it is to determine the sufficiency of the grounds stated. It was filed Thursday by Great Bend attorney Brock McPherson on behalf of a recall committee that included Michelle Oneil and Mike Gowans.
Matthews had up to five working days to make a ruling. However, it didn’t take that long.
“I have determined that the proposed petition is not substantially in the required form and that the allegations in support of recall are legally insufficient,” he said in the letter.
State statutes outline three grounds for recall of a local officer: conviction of a felony, misconduct in office, or failure to perform duties prescribed by law. Misconduct in office is a violation of law by a local officer that impacts that person’s ability to perform the official duties of the office.
The grounds stated in a recall petition must be specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office.
Additionally, the law requires the county attorney make certain other determinations. “After reviewing the proposed petition for recall, I have determined that: the petition was not filed during the first 120 days of the term of office of any of the board members or within less than 180 days of the termination of the term of office of any of the members; the USD 428 Board of Education members are local rather than state officers; and, to date, none of the board members has been subjected to another recall election during the current term of office,” Matthews said.
In addition, Zimmerman advised Matthews that there are not a sufficient number of individuals to constitute a recall committee, and for that reason, this proposed petition cannot go forward, Matthews said.
State law requires that a three-member recall committee endorse the petition when it is filed. The initial filing had three names, but one was withdrawn at the request of the individual, leaving only Oneil and Gowans.
“After examining the appropriate Kansas statutes, Kansas attorney general opinions, and the available case law, I have determined that the proposed petition is not substantially in the required form and that the allegations in support of recall are legally insufficient.”
Several allegations against the seven members of the USD 428 school board are given in the proposed petition; he examined each charge individually.
“The language used is apparently inclusive, and I believe that the committee seeks the recall of all seven Board members at the same time,” he said.
Pursuant to the Kansas Constitution, public schools are operated by locally elected boards. USD 428 board consists of seven members, each of whom are elected during a general election.
“Since they are elected local officers, there is no doubt that members of a school board can be the subjects of a recall election,” he said. However, the state law reads: “The number of local officers serving on the same governing body which may be subject to recall at the same time shall not exceed a majority of the members of the governing body minus one.”
“Given this language, I do not believe that the petition for recall can go forward,” Matthews said. The board has seven members, so this formula would allow for only three to be recalled at one time.
Furthermore, each petition shall include “the grounds for recall described in particular in not more than 200 words.” “I personally counted the number of words on the first page of the proposed petition and stopped at a number far greater than 200. This would violate the controlling statute and take it out of the required format.”
As for the specific allegations of misconduct, the petition first alleges that on Saturday Feb. 5, 2016 two USD 428 swim coaches learned of a sexual assault and did not report the same. None of the Board members are named and no information is provided showing what they failed to do regarding the matter. The date cited was also incorrect; the alleged altercation was on Feb. 6.
Another allegation refers to K.S.A. 38-2223 and states “failure to perform duties prescribed by law.” “This language does not indicate when this did not did not happen or which Board member failed to follow the dictates of the statute, or which particular action – or lack of action – was involved,” Matthews said.
The petitioners further allege there was a meeting with the Great Bend High School principal to discuss alleged criminal activity. It is suggested there was a “failure to provide safe environment for children.”
“No Board member is mentioned by name and no information is provided to support the allegation of failing to provide a safe environment or when this took place,” Matthews said.
In addition, it was alleged an assistant superintendent denied a request for information regarding the board and that subsequent phone calls to board members “resulted in ‘no comment.’”
“This is termed to be misconduct, but the allegation fails to show when the calls were made, which and how the board members were involved in the matter, and what policies or laws were violated by these telephone exchanges,” the county attorney said.
Finally, the allegation is made that the “USD 428 school board is not and has not taken the incident seriously and did not take proper action when it was needed – The answer is Not ‘no comment.’”
“This seems to assert more of an opinion than facts, and again does not specify any particular Board member or when and what proper action should have been,” Matthews said.
Matthews said a recall petition must state grounds “specific enough to allow the official an opportunity to prepare a statement in justification of his or her conduct in office.” But. the allegations of misconduct in the proposed petition are directed against the superintendent or employees of USD 428, but not the board members specifically.
“Since they are not the subject of the individual allegations, it is debatable whether the board members would have to respond to the petition, except to say that they are not the subjects of the particular allegations. Given that, the allegations could be determined to fail completely since they do not even refer to the elected board members.
“In short, the grounds are not legally sufficient since they do not advise of any particular misconduct in office or failure to perform duties prescribed by law on the part of any of the Board members, either as a group or separately,” Matthews said.