Following 35th Circuit Court Judge Matthew Stewart’s dismissal of their appeals in a ruling on Tuesday, Oct. 26, Shiawassee Commissioners John Plowman (R-Dist. 7) and Cindy Garber (R-Dist. 6) expressed they disagreed with the decision. The disagreement with the ruling stems from several reasons Plowman and Garber offered recently.
The background of the ruling began on Aug. 25 when recall committee members including Anthony Karhoff of Bancroft (Dist. 5), Don Goetschy of Sciota Twp. (Dist. 6), Matt Shepard of Perry (Dist. 7) and Jeff Reed of Byron (Dist. 5) filed a recall petition with the county clerk’s office.
The recall effort is directed at Plowman, Garber and former Chair Jeremy Root (R-Dist. 5) and stems from the problematic July 15 meeting involving ARPA funds and an alleged Open Meetings Act violation. Root, who retains his seat, has not offered a statement on the ruling.
The language of the recall petition is as follows: “For the betrayal of Public trust and unethical conduct unbecoming an elected official, as in accordance with the National Association of Counties Code of Ethics and Principles; Misappropriation of Taxpayers money from the American Rescue Plan Act for (himself/herself) violating Michigan’s Constitution (MCL Article 11, section 3) which prohibits paying in excess what elected officials including other unqualified individuals have been duly compensated; depriving the Public information by holding a closed session contrary to the Open meetings Act (MCL 15.628); Malfeasance for knowingly doing wrong against the People.”
The language of the recall petition was ruled to be sufficiently clear during a clarity hearing by the Shiawassee County Board of Election on Sept. 7. The election board included Judge Thomas Dignan, Shiawassee County Clerk Caroline Wilson and Shiawassee County Treasurer Julie Sorenson, with Corporate Attorney Eric Morris on hand, too. Several people were in attendance for the Sept. 7 clarity hearing, including Plowman and his attorney and son, Michael Plowman – and members of the recall committee.
During the Sept. 7 hearing, Attorney Michael Plowman called the recall language “vague” and cited other issues he had with the wording – particularly over the end statement on “malfeasance.” Michael Plowman thought that end statement was opinion based.
Following the Sept. 7 ruling by the election board finding that the recall language met the necessary clarity standards and ruling in favor of the language, Plowman, Garber and Root filed appeals with the 35th Circuit Court, though their appeals were dismissed last week.
John Plowman has since shared he thinks his appeal was dismissed too soon and he was not permitted his “due process.” Stewart’s ruling took place on Oct. 26, though originally, a hearing had been planned for the next day. Both Plowman and Garber had been depending on the hearing to express their positions.
Plowman offered a “Statement of Facts” provided by his attorney. He then continued to explain his position on the language of the recall, finding a number of faults he believes are inaccurate or unclear. One question he shared involves a statement in the provided brief offering Dignan referenced a lack of “information necessary to enable the voters whose signature was sought to make an informed decision about whether to sign the petition.” Other points are described in the brief on Dignan referencing the last statement as being opinion based and a statement on poorly punctuated sentence structure.
Judge Matt Stewart, in a case management and briefing order (CMO) signed on Sept. 21, outlined a specific process to Plowman, Garber and Root on the appeal procedure. The order requires four specific items of each appellant (Plowman, Garber or Root) at the end of the document.
In Stewart’s final order of dismissal signed on Oct. 28, he cites the CMOs on Sept. 21 “noted several deficiencies with the Appellant’s filings, such as a complete failure to comply with the court rules concerning appeals.” Stewart also called attention to the legal determination between filing an appeal verses filing a complaint – as recognized by the court. The initial appeals had been filed as complaints.
In the final dismissal, it is also stated, “Despite the CMOs highlighting these defects, none of the Appellants made an effort to bring their filings into compliance.” In short, the ruling stems largely from a lack of following procedures as defined in the Sept. 21 CMO.
Plowman discussed other, similar cases in which complaint is used – not appeal. He also calls out the language on the “National Association of Counties code of ethics and principals.” Plowman’s stance is that the reference is misleading since the county has never been a member of the NAC “and thus is not bound by this standard.” He mentioned a recall case in 2010 involving former commissioners Jon Michael Fuja, Bruce Robb and Henrietta Sparks, also arguing over the NAC language – finding the statement as misleading to the voter.
Plowman, a longtime commissioner who has been involved on numerous county, township and city boards going back decades, stands behind his initial argument and is in disagreement with the Oct. 26 ruling.
Both Plowman and Garber shared they thought they would have the opportunity on Oct. 27 to publically state their points on the recall effort to their constituents in their districts, but since the ruling happened a day earlier, they wanted to clarify some of the appeal information to their voters. Both commissioners have stated they believe they are correct in taking a stance on behalf of their supporters.
