Elaine Gibbs was placed on the agenda for a recent meeting of the Board of Selectmen to report on her investigation into the failed Recall process that sought to remove and replace three of the five selectmen. Recall is a seldom used device provided for in the town charter for voters to voice their objection to actions or inactions of their elected officials. It is a very serious matter so the town charter prescribes an exact procedure that must be followed. No one questions the right of voters to seek recall. However, the recall must be conducted in accordance with the law. This was not done in this case.

What Ms. Gibbs found was that the recall process was void from the beginning. It did not follow the procedure required by the town charter which calls for sworn statements by 100 voters stating their grounds for the recall. In addition to a lack of sworn statements, the grounds stated for the recall were clearly false, as was known by those initiating and in charge of the process.

Ms. Gibbs presented her detailed, well researched report to the board and was heckled and harrassed throughout by some in the audience, without being reprimanded by the Chairman Leonard Sussuman.

Because of the importance of the issue, the Cape Cod Chronicle decided to publish the highlights of Ms. Gibbs' report and her comments on the the disgraceful way in which the Board of Selectmen hearing was conducted by Chairman Sussman. It appeared as a "You Guest It" article on April 14, 2011. Ms. Gibbs' letter follows:

RECALL FLAWED BECAUSE IT VIOLATED THE LAW

Heckling and snickering during Selectmen’s meetings, affectionately referring to me as “that B…” to anyone who’ll listen, doesn’t change “fact” to “opinion. Sometimes a fact is just a fact- despite the Chair allowing them free rein until finally ruling “One at a time please.”

As the first step to Recall, Chatham’s Charter requires an Affidavit signed by 100 voters. An Affidavit is a sworn statement of fact signed by Affiants to the truth, under penalty of perjury. It’s not an Affidavit unless a Sworn Declaration is made. That’s fact, not opinion, Stuart.

An Affidavit is the safeguard against false statements. Onus rests with the 100 signatories under the penalty of perjury. It vets “grounds” so that Petition signers are confident of the truth of the grounds. No such Declaration was made. Therefore this was not an Affidavit and should not have been accepted by the Town Clerk, whose duty is to assure compliance with Town Charter law. Because it did not, the Recall was invalid and Petitions should not have been distributed.

The first “Ground: Selectmen “did not have sufficient/just cause to terminate the contract.” The TM contract was not “terminated”. Employment/Contract law definition of “non-renewal” is significantly different from “termination. At the November 29 meeting it was clearly pointed out that the TM contract was a “non-renewal.” People lined up to sign the Affidavit anyway. Had there been a Sworn Declaration, they may have thought twice.

The second “Ground”: Selectmen “failed to provide sufficient and factual basis for their action.” The BOS is constrained by statute from discussing personnel matters in a public forum. To appease those who demanded the Recall, Selectmen would have been required to break the law, exposing the town to serious liability. The Ground is materially false because it’s impossible to legally comply with the demand. The “Ground” gave the false impression it was within the selectmen’s power to do so, but instead, for nefarious/secretive reasons they refused to disclose information.

The Petition was incomplete. Chatham’s Charter requires the petition “demand the election of a successor in said office.” Within 60-90 days of certification, election of successors must occur concurrent with the town Recall vote. (March) Thus the “demand” must be made. Unfortunately no candidates were willing to step up to fill the void were the Recall successful.

Voter regulations apply, following election law of “One Man- One Vote.” Signatures must be certified. Even to the untrained eye, with selectmen not disagreeing, dozens signed not only their names, but names of spouses and sometimes other family members. It’s in violation of election law to sign other than one’s own name. Petitioners can not ask or permit anyone to sign for others. Signatures must be in person; not over the phone. Consequently it’s impossible to determine how many individuals actually signed petitions. All fact.

It’s disturbing that something as serious as the potential unseating of duly elected officials was handled in such a sloppy manner, with such lack of preparation, care, and attention- a rush to judgment, sacrificing basic principles and violating laws. Recall is a right under Town Charter. With that right comes responsibility. Ignorance of the law is no excuse. It was irresponsible to not give one thought to the consequences had the Recall been successful and we were left with only 2 selectmen. An opinion.

We have a right to expect basic laws are followed, with safeguards in place to preserve the integrity of elections -- a basic duty of government. I vehemently disagree with Town Attorney Gilmore that freedom of speech and “right to petition” trumps a requirement to be accurate and truthful; that it was “no harm; no foul” because the Recall was unsuccessful; that it’s “Buyer Beware;” it’s no big deal to violate the Town Charter; that our Charter is just a suggestion; that Burden of Proof falls to the accused rather than the accusers; and to have laws enforced we must hire attorneys and/or file complaints with the state.

Mr. Gilmore never saw the Affidavit or Petitions, yet he determined there was no “need for investigation.” Because he represents Town government (Mr. Hinchey et al) and not the people, by his own admission he should not have offered any opinion, yet he offered many. I don’t understand why Mr. Whitcomb and Mr. Sussmann are remarkably uninquisitive about what transpired.

The Board has the duty to prevent Conflicts of Interest, authority to conduct investigations, and the duty to “cause laws to be enforced.” This isn’t just about Recalls. It’s a symptom that has to be diagnosed and treated. Erosion of trust and loss of faith in government is a downward spiral. If this is ignored and we don’t determine how and why this could possibly happen, it will result in further loss of trust and faith. That is an opinion which may end up becoming fact.

Elaine Gibbs