Retroactive Recall, Removal, Nullification of Election, or Change of Term of Regional Election (2007)

BYLAWS COMMITTEE OPINION

Retroactive Recall, Removal, Nullification of Election, or Change of Term of Regional Representatives

1/31/2007

 

TABLE OF CONTENTS

I. DECISIONS OF THE BYLAWS COMMITTEE....................................................................... 1

A. Can a Region change the length of Coordinating Committee terms from the two years as defined in the bylaws to something else, and in particular, can it do so in the middle of an existing term after a person(s) has been elected to it?............................................................. 1

B. Can a Coordinating Committee member be removed from office without going through the recall process?.................................................................................................................... 2

C. Does a region have a right to review previous elections and overturn elections it finds invalid? .................................................................................................................................... 2

D. If a region holds a regional representative election in compliance with Paragraphs 6-3.2c, 7-1.4, and 7-1.5, is the GPCA required to honor such an election? If not, under what circumstances can the CC reject such an election? ................................................................. 2

II. FULL REPORT.......................................................................................................................... 3

A. more detailed inquiries related to IA above............................................................................ 3

B. more detailed inquiries related to IB above ............................................................................ 5

C. What does it mean for a County or Region’s procedure to be filed with the GPCA?............ 7

III. MINORITY REPORT.............................................................................................................. 8

IV. UPDATE TO MAJORITY REPORT....................................................................................... 9

Note: The intent of including a minority report is not to set a precedent for all future Bylaws Committee opinions, but to adequately address the depth and scope of the discussion on these issues.

 

I. DECISIONS OF THE BYLAWS COMMITTEE

 

A. Can a Region change the length of Coordinating Committee terms from the two years as defined in the bylaws to something else, and in particular, can it do so in the middle of an

existing term after a person(s) has been elected to it?

 

COMMITTEE DECISION: No. A region may not shorten the length of a CC term from the two years defined in the bylaw, including in the middle of an existing term.

PASSED with 88% approval:

Tim Morgan – Yes

Mike Feinstein – Yes

Bruce Wolfe – Yes

Cat Woods – Yes

Linda Lemaster – Yes

SKCM Curry – Yes

Pat Gray – No

Pat’s not be retroactively overturned without following the recall procedure to recall the seated representative.

PASSED with 83% approval:

Tim Morgan - Yes

Mike Feinstein - Yes

Cat Woods - Yes

Linda Lemaster - Yes

SKCM Curry - Yes

Pat Gray - No

Pat’s outstanding concern: “A region has the right to elect their own rep and we don’t have the right to tell them how to do it and we can’t override their process.”

 

D. If a region holds a regional representative election in compliance with Paragraphs 6-3.2c, 7-1.4, and 7-1.5, is the GPCA required to honor such an election? If not, under what circumstances can the CC reject such an election?

 

COMMITTEE DECISION: The GPCA bylaws are unfortunately silent on the topic of how to enforce the bylaws or what to do when GPCA bylaws or a region’s approved process are violated. The Bylaws committee strongly recommends that a new bylaw be written and approved to handle this situation. While the CC does not have the authority to overturn a region’s election, how much latitude it has in recognizing the validity or invalidity of a region’s election is ambiguous. The CC has the ability to pass a bylaws interpretation on specific situations, with the stipulation that it must take that decision to the next General Assembly.

 

PASSED BY CONSENSUS

 

II. FULL REPORT

 

A. more detailed inquiries related to IA above

 

Can a Region change the length of Coordinating Committee terms from the two years as defined

in the bylaws to something else, and in particular, can it do so in the middle of an existing term

after a person(s) has been elected to it?

 

The GPCA bylaws provide a clear process for changing the length of a Coordinating Committee

(CC) representative’s term in the middle of an existing term: the Removal for Cause section

(Section 6-3). This requires presentation to the CC of a written statement specifying the cause for

recall from three CC members or three General Assembly (GA) delegates from the region, a

hearing by the constituent body facilitated by the CC where both sides have equal presentation

time, and, following this, a decision by at least 2/3 of the constituent body to recall.

Section 6-3. Removal for Cause.

6-3.1 Resignation

Unless given special dispensation by the Coordinating Committee (CC) or the General

Assembly, any CC member (or any officer appointed by the CC) who cannot fulfill their

duties to the best of their abilities as described in these bylaws or operate in accordance

with the 10 key values, shall resign by notifying the CC in writing. Resignation is implied

whenever any of the following occur:

a) the member moves out of the region they represent, or the state, if at-large;

b) the member registers with any other political party, including decline to state;

c) the member fails to maintain an updated, accurate voter registration, unless prohibited

by law;

d) the member misses three consecutive General Assembly meetings or CC regular

meetings without appointing a qualified alternate.

6-3.2 Recall Authority

The decision to remove a CC member (or any officer appointed by the CC) must be made

by the constituent body empowered to elect the member or appoint the officer:

a) The constituent body for appointees of the CC is the CC;

b) The constituent body for at-large CC members is the General Assembly;

c) The constituent body for regional CC members is the regional caucus of General

Assembly delegates or an alternate body if designated according to Paragraph 7-1.5.

6-3.3 Recall Procedure

A CC member (or any officer appointed by the CC) may be removed from office if the

member or appointee fails to resign as described in paragraph 6-3.1. The following recall

procedure must be followed:

a) A written statement from three active CC members (or three General Assembly

delegates from the region represented by a regional CC member) must be presented to the

CC and the individual in question specifying the cause for recall at least two weeks prior

to a regular meeting of the constituent body.

b) The CC may appoint a special committee to attempt mediation. In any event, if a

resolution agreeable to both parties is not reached by the day of the meeting of the

constituent body, the CC shall facilitate a formal recall vote.

c) If a formal recall vote is required, both parties shall be given equal time to make their

case at a regular meeting of the constituent body where a quorum is present (regional

caucus quorum is more than 1/2 of the total number of delegates allocated for the region).

 

The recall proposal is a business decision requiring consensus or a 2/3 fallback vote to

remove the member.

 

There have been arguments advanced about a connection between the dates of County Council

elections and Regional Representative elections. Does this connection exist in GPCA Bylaws or

in its Rules & Procedures?

 

The GPCA Coordinating Committee was created at the August 1990 General Assembly in

Arcata. The original length of Coordinating Committee terms was 18 months. This was changed

to two years at the April 2001 General Assembly at Sacramento, and is currently reflected in

Paragraph 7-1.5 of the GPCA bylaws.

7-1.5 Selection of Regional Members

Regional members shall be selected by regional caucus of delegates at General Assembly

meetings, unless the active counties of a region select another process. Any such

alternative process must be consistent with the ten key values, GPCA bylaws, and

California law; and approved by all the County Councils of the active counties of a

region; and filed with the Coordinating Committee and the Bylaws Committee. Regions

with two or more seats are encouraged to strive for gender balance.

 

The state of California changed the primary from June in 1994 to March in 1996 to June in 1998

to March in 2000 (http://www.ss.ca.gov/elections/elections_elections.htm). Despite this, there

was no effort on the state party level during this time to connect CC terms with county council

elections.

 

In April 2001, the GPCA GA changed the length of CC terms from 18 months to two years. Had

connecting CC terms with County Council elections been an issue at that time, it could have

been part of that proposal or offered as a friendly amendment. However, the issue was not even

mentioned in the list of comment/ concerns recorded on the GA proposal at that time. There is no

mention of a connection between the timing of regional rep elections and county council

elections in the GPCA bylaws or procedures, the April 2001 proposal to the General Assembly

that changed the length of the term from 18 months to two years

(http://cagreens.org/plenary/archives/agendas/0104Agd_Sac.pdf), or the minutes from that

meeting (http://www.cagreens.org/plenary/archives/minutes/0104Min_Sac.pdf).

 

In 2004, the state of California changed the date of the primary yet again, this time back to June.

Between the time the legislature changed the date and the beginning of calendar year 2006, the

GPCA had five General Assemblies, yet again there was no proposal to the GA for decision or

even discussion to align the beginning/ending dates of CC terms with those of County Council

elections.

 

The current beginning/ending dates for Regional Representative terms are:

Emerald (1) – January 2008

North Bay (1) – February 2007

San Francisco (1) – May 2008

Silicon Valley (1) – June 2008

East Bay (2) – July 2007, July 2008

Monterey Bay (1) – August 2007

Central Coast (1) – August 2007

Los Angeles (3) – April 2008

San Bernardino / Riverside / Orange (1) – November 2005

San Diego / Imperial (1) – March 2008

Central (3) – North, May 2007; South, May 2007; At-large, September 2008

At-Large (4) – two at first General Assembly in 2007, two at first General Assembly in 2008

 

Six of the sixteen regional CC seats (almost 40%) are currently scheduled for elections during

the five months immediately preceding county council elections, including two (San Francisco

and San Diego/Imperial) in the month immediately preceding. By contrast, only three regional

elections come up in the same calendar year after a county council election. Very few county

council elections involve general membership participation in contested elections.

 

There is therefore no mandatory or historical connection between the timing of regional rep and

county council elections in GPCA bylaws or practice.

 

There have been arguments advanced that Regions may change the length of an existing term,

even after an individual has been elected and is already serving her/his term. Is there any

provision for this in GPCA Bylaws?

 

There is no provision in the GPCA bylaws for this. Paragraph 7-1.4 states that the length of term

is two years. The only way this could be shortened without a bylaws amendment is through

resignation or recall.

 

If Regions were able to change the length of an existing term (even if it were in order to change

the existing beginning/ending dates to new ones), how often could they do so? An unlimited

number of times? One time with each new County Council? Something else?

 

If Regions were able to change the length of an existing term, how would such a process be

differentiated from a recall?

 

If Regions were able to change the length of an existing term, would there be standards for

allowing a Region to do so? Under what voting conditions could it occur - a simple majority,

2/3, 80%? Could it occur after the term began and a new person was already occupying the

seats? Could it occur only before a new term began?

 

Would it require a bylaws change to establish the answers to any/all of these questions?

 

Allowing the length of existing terms to be changed and establishing the standards and limits for

such changes would require a bylaws amendment by the GA. The current voting conditions for a

region to decide to change the term of a seated representative would be those stipulated in

Paragraph 6-3.3 of the GPCA bylaws: statement of cause from three CC representatives or GA

delegates from the region, a meeting of the constituent body facilitated by the CC where both

parties have opportunity to make their case, and at least 2/3 approval by the constituent body.

 

B. more detailed inquiries related to IB above

 

Can a Coordinating Committee member be removed from office without going through the recall

process?

 

Is there any provision in the bylaws for removal of a representative other than a recall? Is there

any distinction made between removal of a representative from office and a recall of that

representative?

 

There is no provision in the GPCA bylaws, other than a recall, for removing a representative

from office. There is no distinction made between the removal of a representative from office

and a recall of that representative.

 

Does a recall under 6-3.1(a) - (d) require a hearing and vote under 6-3.3(c), with the person to

be recalled given the opportunity to attend and state their case?

 

Paragraph 6-3.1 refers to resignations, not recalls. If a representative meets the conditions of

implied resignation and fails to resign, this is grounds, under Paragraph 6-3.3, for a recall of that

representative. So if the implied resignation is contested, it is grounds for a recall, which does

require the steps of a hearing and vote stipulated in 6-3.3.

 

Can a business decision of a Region take the place of a recall under 6-3.1(a) - (d), by in effect,

removing a Coordinating Committee member based upon 6-3.1(a) - (d), but without going

through 6-3.3(c)?

 

As noted in the answer to the previous question, the failure of a representative to resign after

meeting one of the conditions in 6-3.1 is grounds for a recall. 6-3.1 is not itself about recalls. If

an implied resignation is contested and a recall initiated, the recall procedure “must be

followed,” as stated in 6-3.3.

6-3.3 Recall Procedure

A CC member (or any officer appointed by the CC) may be removed from office if the

member or appointee fails to resign as described in paragraph 6-3.1. The following recall

procedure must be followed:

 

a) A written statement from three active CC members (or three General Assembly

delegates from the region represented by a regional CC member) must be presented to the

CC and the individual in question specifying the cause for recall at least two weeks prior

to a regular meeting of the constituent body.

 

b) The CC may appoint a special committee to attempt mediation. In any event, if a

resolution agreeable to both parties is not reached by the day of the meeting of the

constituent body, the CC shall facilitate a formal recall vote.

 

c) If a formal recall vote is required, both parties shall be given equal time to make their

case at a regular meeting of the constituent body where a quorum is present (regional

caucus quorum is more than 1/2 of the total number of delegates allocated for the region).

The recall proposal is a business decision requiring consensus or a 2/3 fallback vote to

remove the member.

 

May a person be recalled retroactively? If so, are there any restrictions on determining the

effective date of recall? Would votes taken during that time have to be changed to remove the

rep’s votes retroactively? May a person be recalled who is no longer in office?

 

No. There are no provisions in the GPCA bylaws for a retroactive recall or removal from office.

If a region goes through the procedure of removing its representative from office according to

Paragraph 6-3.3, the removal takes effect as of the recall decision by the constituent body after

following the recall procedure in 6-3.3.

 

Can a second person be removed from office without a hearing under 6-3.3(c), if they served as

an alternate for a person who is recalled? Or are they entitled to a hearing under 6-3.3(c) of

their own?

 

The process for removing a representative is stipulated in the bylaws without any distinction

between those who were elected directly to the position and those who were formerly alternates

and then replaced another representative. Unless stipulated by a region’s alternate process, a

region has a choice at the time of resignation or recall of a representative whether to hold a new

election for that position or allow the alternate to replace the representative. Once that decision is

made, the new representative is entitled to a fair hearing in compliance with the bylaws. A region

is free to recall more than one representative or alternate, but the region must go through the

recall procedure for each.

 

If they are entitled to a hearing of their own, can they be recalled based upon the recall of the

person for whom they served as an alternate or must they be recalled based upon issues specific

to them? If they can be recalled on the basis of issues of the person for whom they were an

alternate, can such a recall be performed retroactively?

 

As stated earlier, recalls take effect as of the recall decision after following the recall procedure.

They cannot be performed retroactively. The constituent body may hear all the issues related to

the representative being recalled.

 

C. What does it mean for a County or Region’s procedure to be filed with the GPCA?

 

The region submits its procedure as approved by the counties in the region to the CC and the

Bylaws committee. Also helpful are the minutes of the meeting(s) where the procedure was

passed and any relevant quorum information.

 

How have Regions notified the Bylaws Committee and the Coordinating Committee of their

alternate processes in the past?

 

Alternate processes have been posted to the listservs of these committees.

 

Have Regions been required to notify the committees prior to using the process or have the

alternate processes been considered valid as long as they’ve received valid approval from every

county in the region?

 

Regional alternate processes have been considered valid if they’ve received valid approval from

every county in the region prior to using the processes. Notification has been accepted after the

use of the process. As Jim Stauffer wrote on February 2, 2005

(http://marla.cagreens.org/mailman/private/gpca-cc/2005-February/002665.html),

“The procedure is required to be approved by the affected county councils, and filed with

the CC and Bylaws. But the procedure must be consistent with CA laws, GPCA bylaws

and 10KV, that’s where the CC & Bylaws review comes in. The timing of all this isn’t

indicated.”

 

Do the Bylaws set a standard for how this process should occur? If the process is unclear and/or

has been applied unevenly in the past, how should the GPCA go forward in the future?

 

What standards the GPCA ought to adopt in the future is somewhat beyond the scope of the

Bylaws committee’s purview. It is recommended to verify the regional decision with collection

of meeting minutes and quorum information and to apply all criteria as even-handedly as

possible. We also recommend that the advice and consent roles of the Bylaws committee and the CC on these regional procedures be clarified; this could be clarified in a GPCA bylaws amendment or Procedure.

 

This report is submitted by an 86% majority of the Bylaws Committee:

Tim Morgan, co-coordinator and liaison to the Coordinating Committee

Cat Woods, co-coordinator

Linda Lemaster

KCMS Curry

Mike Feinstein

Bruce Wolfe

 

III. MINORITY REPORT

 

The Bylaw Committee was requested by the State Coordinating Committee to give our opinion

on matters relating to term of office for Regional Reps, the method of recall for these Reps, and

an inquiry on whether the C.C. can disregard the results of an election that was held according to

bylaws. The majority report on these matters was given as if these questions were generic to all

situations and not specifically concerned with the current impasse in the State Coordinating

Committee concerning who are the legitimate representatives from Los Angeles.

 

It is the opinion of this minority report that the last question concerning recognizing elections is

the most vital to the successful functioning of our political party. Grassroots Democracy is one of

the ten key values of the Green Party. The results of an election take precedent over nominal

times of service and recalls that did not take place.

 

The Bylaws Committee stated by consensus that the GPCA CC does not have the authority to

overturn a region’s elections. Los Angeles has the right to elect their Regional Representatives to

the State Coordinating Committee.

 

The state party, including the CC, should defer to its counties and regions when possible, subject

to the counties and regions using open, democratic processes. The bylaws provide for a region’s

ability to elect new regional reps independent of the default two year term. The bylaw (7-1.4)

provide the “CC representatives shall serve for a nominal term of two years or until their

successors are elected”, which should be interpreted to allow for either shorter or longer terms

than two years, at the option of the region.

 

In the case at hand (LAC), the county/region bylaws were written and regional reps were elected

by a rump county council, just before the current county council was elected.

Democracy demands that the CC defer to the GPLAC county council in this matter.

 

This report submitted by:

Patricia Gray, Minority Report scribe

 

IV. UPDATE TO MAJORITY REPORT

In response to the argument made during debates, that the intention of the GPCA bylaws is that

Section 6-3 should apply only to cases of actual malfeasance, we would like to point out that

there is no need for a region to ever follow the provisions for recalling a representative if it may

hold a new election at any time. A region would have no reason to provide a fair hearing and

face a 2/3 threshold if it could simply hold a new election instead. The idea that the GPCA

bylaws are intended to provide due process in cases of actual malfeasance but not in cases where

there is none seems to us implausible.

 

We are concerned about the possibility of setting such a precedent. Once regions can hold

elections whenever they want, there would likely be an increase in elections held whenever a

majority shifts – creating a state of “temporal gerrymandering.” We are convinced that

Section 6-3 is designed to avoid such situations, by requiring a fair hearing of both sides when a

region becomes unhappy with its representative during the course of that representative’s elected

term.

 

The key distinction made in this opinion is that between “overturning” an election and

“recognizing the invalidity” of an election. Regional elections are clearly expected to be held in

accordance with GPCA bylaws. We recommend that the General Assembly approve a clear

procedure and set of criteria for the recognition of elections as valid or invalid according to

GPCA bylaws.