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Petition group files motion to intervene as defendants in Ezzell recall hearing

Petition group files motion to intervene as defendants in Ezzell recall hearing

Stephen Jones

ENID, Okla. — Enid attorney Stephen Jones on Friday filed a motion in district court on behalf of Enid Freedom Fighters to intervene as defendants in City Commissioner Ben Ezzell’s hearing protesting their petition to recall him.

The motion argues the citizens’ group has an interest in defending itself in Garfield County District Court, under Oklahoma civil statute, because its representatives filed the petition being challenged.

“Enid Freedom Fighters believe they are best able to defend themselves in the suit and should be allowed to intervene as defendant in order to do so,” the motion stated.

The Ward 3 commissioner, an Enid attorney representing himself as plaintiff, will protest the sufficiency of the group’s petition 10 a.m. Oct. 6 at Garfield County Court House. Blaine County Associate District Judge Allison Lafferty was reassigned the case last month and reset the hearing then. Lafferty filed a motion for continuance to October on Tuesday, when Ezzell’s hearing originally was set to take place.

Lafferty is expected to rule on Jones' motion to intervene. She also will rule Oct. 6 on Ezzell's challenge to the recall petition.

Ezzell's filing has named Enid Mayor George Pankonin and City Clerk Alissa Lack as defendants. Both have answered summons as representatives of the city of Enid. Tony Puckett, of Oklahoma City, is listed as their attorney.

Ezzell also served his initial objection to the group through Enid attorney Taylor Venus, who has not entered an appearance in the case but has assisted the group on an informal basis, according to the motion. It stated Ezzell’s attempted service was “totally defective” and precipitated the need to intervene.

In a statement provided to the News & Eagle, Jones referred to the Freedom Fighters as a group opposed to mandatory mask ordinances in Enid and committed to a recall election against Ezzell. The group is comprised of representatives Keith Siragusa, Heather White, Ty Atkinson, Brian Henry and Jennifer Henry, all residents of Ward 3, according to the motion.

The group submitted the recall petition of 204 signatures, collected within 48 hours, to the city Aug. 4. Sixty-nine signatures, 30% of the most recent ward election, were required for a recall to be held.

After an incorrect reading of the signee affirmation language from City Attorney Carol Lahman led to Lack initially rejecting the petition, the group resubmitted it on Aug. 7. Lack on Aug. 14 verified 87 of the 204 were sufficiently affirmed by petition circulators and were registered voters, and disqualified 69 others.

Lahman later wrote the group an apology letter, attached as an exhibit to the motion, explaining she had been incorrect in her earlier assessment of the petition’s sufficiency and believed the affirmation of all four methods of identity verification: that “signators were known (personally), at their home at the time of the signing, verified through (the circulator) at okvoterportal.okelections.us, or stated they were a registered voter in Ward 3” (emphasis added). Lahman had initially misread "or" as "and," she said.

Their petition calls for Ezzell’s recall for reasons including, among others: “Conduct unbecoming of an elected official”; “dividing our community by threatening use of force and advocating fines against law abiding, healthy citizens”; and “disrespecting our police department and failing to heed the advice of our police chief.”

Ezzell drew criticism for an email to fellow commissioners and city officials pushing for a proposed citywide COVID-19 mandate system and criticizing public comments made by Enid Police Chief Brian O’Rourke. The motion for a mandate itself failed in a 4-3 vote on Aug. 4, the same day the group submitted its petition to the city.

Ezzell filed his objection in Garfield County District Court on Aug. 17. In part, Ezzell’s challenge to the recall petition states the petition is insufficient for the following reasons: the petition pamphlets failed to include obligatory language provided for in state statute; the circulators failed to check photo identification cards when collecting signatures, making their written affirmations ineffective; the affirmations fail to address charter requirements for truthfulness of underlying statements; and the seven stated reasons to recall Ezzell are “each either legally meaningless, specifically allowed under charter and/or ordinance, objectively and obviously false, or otherwise fail to describe any grounds or charges for recall.”

The Freedom Fighters’ motion also argues for the petition’s sufficiency because it followed the Enid City Charter and was not required to conform to state statute previsions of initiatives and referendums, as Ezzell initially argued in his objection.

Enid’s city charter, written in 1909, provides that the city is to hold a recall election no sooner than 30 days from the clerk’s certification, and no later than 40 days. However, the Oklahoma Supreme Court determined that state statutes that restrict when the people can call elections are a matter of statewide concern and take precedence over the charter, invalidating the time frame and allowing for the November and February elections, the only valid statewide election dates left.

The next day, on Aug. 18, city commissioners voted unanimously to table a decision to set a date for a recall election. That decision by commissioners ruled out having the election on Nov. 3, because Garfield County Election Board requires notice of an item for that election no later than 75 days prior, which was Aug. 19, the day after.

The motion also argued the commission’s tabling was a deliberate, “bad faith” attempt to prevent a recall election, with Jones' statement saying Ezzell himself suggested the tabling. The motion cited the Supreme Court Bush v. Gore 2000 decision as precedent of the unconstitutionality to disregard a statutory election deadline.

Commissioners several times stated the tabling was due to the pending resolution of Ezzell’s hearing. Lahman said after the Aug. 18 meeting there is nothing in the city charter that said the commission couldn’t have tabled the vote, but Jones' motion argues the commission still could have voted on a date before a hearing decision was made.

That vote left the municipal election of Feb. 9, 2021, as the only viable date for the recall, during which Ezzell would also run. Feb. 9 is the same day an election will take place for Ezzell’s successor. His term expires in May 2021.

The latest the election board would require notice for Feb. 9’s election is Nov. 20.

The motion also argues for a timely disposition from the court should the petition be ruled insufficient and a new one must be circulated, presented to the city clerk for sufficiency and satisfy the public notice requirement by Nov. 13.

“Our clients do not wish Mr. Ezzell to remain in office, even for three months, without a recall election,” Jones’ statement read.

Commissioners tabled the vote to Sept. 15’s regular meeting, next Tuesday.

“If (city commissioners) do not schedule an election, petitioners have little recourse but to name them in their official capacities as defendants and ask the court to order them to set the election date, or the court itself will set the election date,” Jones’ statement also read. “... Otherwise, we will ask the court to order the recall election on the November 2020 ballot.”

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Ewald is copy editor and city reporter for the Enid News & Eagle. Follow him on Twitter, @oualexewald.

Have a question about this story? Do you see something we missed? Do you have a story idea for Alexander? Send an email to aewald@enidnews.com.

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