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The 'Ouster law' lets you throw the bums out
[Editor's note: Plato wrote The Republic 23 centuries ago, but intelligent people are still grappling with the problem of finding qualified leaders. Probably for just as long they've wondered how to get rid of the bad ones. The French and British learned how to rid themselves of royalty, but publicly beheading officials ties up traffic, is so messy and taxpayers get stuck with the clean-up bill. Here's a silver bullet from our masked man in the Justice Center].
By LAWYER X
Putnam Pit Guerrilla Law columnist
When passions began rising over the plan to sell or lease Cookeville General Hospital, the city received calls from newly mobilized residents wanting to know how to boot elected officials from office.
The Cookeville City Charter ignores this issue, irate callers learned, and there is no general state law allowing removal of state or local officials. Such a provision would have to come from the state legislature by way of a constitutional amendment, change in state law, or a change in the city charter.
But whether you want to dump the council, the hospital board, the dog catcher or clerk of courts, you can start with the provisions in the state's "ouster law." This law provides for the removal of public officials for misconduct in office, neglect to perform any duty required by law, being publicly intoxicated, engaging in gambling or violations of any penal statute involving moral turpitude. The ouster process begins by having a petition filed in court by the state attorney general, district attorney, county attorney (when the repudiated official is at the county level) or, in the case of a council person, the city attorney. Chances that a city attorney, bought and paid for by officials, would help citizens oust his bosses may not be that great, so the law provides a direct method.
If 10 citizens of the jurisdiction the official serves -- say, the city for a council person -- file an "ouster lawsuit," the official may be temporarily suspended from office pending a final hearing. The official may demand a jury trial, and if the petition is upheld, the official is declared ousted from office.
Generally, the main problem in these cases is determining what constitutes "willful misconduct in office." In Claiborne County, School Superintendent Dennis Peters was removed from office a few years ago when he transferred money provided by the federal government for certain designated purposes to the general fund to avoid a budget shortfall. The Supreme Court said in that case that an intent or desire to benefit personally from the misconduct is not an essential element of misconduct.
However, in the Wilson County school board case of 1992, the court declared that the school board could not be ousted from office where the records indicated a $2 million shortfall in revenue. The court held that mere mistakes by the board are not enough; there must be clear and convincing evidence of official dereliction of duty.
The question then becomes what facts constitute "willful misconduct in office." Certainly the facts in each case are different and the result will depend upon (1) some wrongful act, or (2) failing to perform the duties of office as set forth by law. The process of "ouster" is time consuming; it requires substantial expenses as any court lawsuit, and victory is not certain absent the required clear and convincing evidence of wrongdoing.
[To receive a blank ouster petition, send $1 and a self-addressed, stamped envelope to: Guerrilla Law, c/o The Putnam Pit, Box 475, Portland, ME 04112. Please specify what jurisdiction (city, hospital district, county, state,) and office (mayor, council member, clerk of court, etc.)]