Sunday, September 7, 2008

Candidate complains about ballot decision

While Antioch officials remain tight-lipped as to why they denied mayoral candidate Jim Davis the use of his city title on the November ballot, Davis is speaking out about what he says was a secretive and biased decision.

"Something's not on the up and up," Davis said.

Davis originally requested to use his title of mayor pro tem on the ballot in his race against incumbent Mayor Donald Freitas. According to Antioch Municipal Code, the position of mayor pro tem is conferred on the top vote-getter in each City Council election. The request was denied by City Clerk L. Jolene Martin and City Attorney Lynn Tracy Nerland.

Nerland and Martin have refused to disclose the reasons for their decision.

He initially protested the decision, but after being told in an Aug. 15 letter that he must either agree with the designation of Antioch City Council member or have no title listed, Davis said he felt forced to accept it.

"I got an ultimatum," Davis said.

Nerland declined to discuss the decision last week but this week confirmed that the city had consulted an outside attorney on the issue.

"The area of elections law is quite specialized, and in specialized areas of the law, it's common for a city attorney to look toward outside counsel resources," Nerland said.

She said the determination was made based on California Election Code section 13107, subsections A and B — but would not specify which part of that Advertisement13-paragraph section applied.

But in an Aug. 11 letter sent to Davis and copied to Nerland, Martin said the designation of mayor pro tem does not comply with California Election Code 13107(a)(i).

That section stipulates that ballot designations must reflect "elective city, county, district, state or federal office which the candidate holds at the time of filing nomination documents to which he or she was elected by vote of the people."

County Supervisor Susan Bonilla was allowed in 2006 to use her then-title of Concord mayor when she ran for the supervisor's seat, even though it was an appointed position.

That decision was made by the county clerk's office. County Clerk Steve Weir said he initially objected to Bonilla's ballot designation because it was an appointed position, but the county's legal counsel advised him to allow it.

Conversely, California Senate President Pro Tem Don Perata did not use his appointed title in his 2004 re-election bid, instead going with "Member, California State Senate," according to staffers.

Davis said he was forced by city officials to sign what he called a release, acknowledging the new ballot designation.

Nerland acknowledged that Davis was required to sign an agreement about the designation.

Bob Stern, president of the Center for Governmental Studies in Los Angeles, said the way the situation has been handled — in particular the city's lack of openness and the release Davis was required to sign — seems irregular.

"I've never heard that before where 'If you don't agree to it, we're not going to give you anything,'" Stern said. "I don't think that's appropriate at all."

He said that because election codes are open to interpretation, courts often give significant discretion to the government agencies making the decisions. Ballot designation challenges happen relatively often, Stern said.

"This is a very, very important decision because ballot titles often times are the only thing voters see," Stern said.

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