Backpedaling

Backpedaling

Once heralded as the best districting option for the stakeholders of the Beaumont Independent School District (BISD) by the agency’s Board of Trustees, the recently adopted redistricting plan is now being disavowed by those who fought the hardest to implement it. The change came after nearly a week of legal back-and-forth between the attorneys for BISD and those who say the district is operating outside of the Constitution.
The BISD board had previously rejected voter intent to move the representation of the board from that of a seven single-member district (7-0) to that of five single-member districts with two at-large representatives (5-2) when the change failed to garner Department of Justice (DOJ) approval. Instead, the district worked with demographers to secure a new 7-0 districting plan. BISD had been ordered to redistrict following the 2010 Census that revealed the current districting makeup was unconstitutional because the largest district in BISD had a more than 10 percent variance from the smallest district in BISD.
After much discussion, public meetings and trips to Washington, D.C., BISD finally accepted a new districting plan on Feb. 21. That plan called for three positions to be filled, with candidates having roughly a week to file for the open seats in the newly redistricted areas. But on the filing deadline — March 1 — a legal question was raised as to whether the entirety of the current BISD board would need to be filled by election.
Is this seat taken?
Although only three seats were up for grabs, according to BISD’s Feb. 21 election order, candidates filed for all seven of the board’s trustee seats. The challengers for the four seats for which no election had been called, through their attorneys, stated that elections were mandated by a Texas Education Code stipulation which states that at the first election after redistricting following a census, “all positions on the board shall be filled.”
BISD attorney Melody Chappell quickly discounted the new candidates’ applications for election and instructed that the upcoming May election would proceed as previously announced – with only three seats up for vote.
“Although the February 21, 2013 election order did not call for the election of the remaining districts, several individuals filed for positions for District 1, District 2, District 3 and District 5,” held by Terry Williams, Zenobia Bush, Woodrow Reece and Mike Neil, respectively, a news release from BISD related. “The attorney for the candidates claims because the alternate 7-0 map and order were not approved within 90 days of the May 11, 2013 election that all districts are up for re-election.
“The district’s attorney, Melody Chappell, has reviewed the matter. She states that it is anticipated the attorney for the candidates will attempt to seek an injunction to invalidate the election. However, Joe Kulavy of the Elections Division of the Texas Secretary of State has verified to her that Beaumont Independent School District Board of Trustees followed all legal steps necessary to prevent all the trustee positions from being placed up for election on the May 11, 2013 ballot. It is clear from the election order that the Board of Trustees provided for members in office to serve for the remainder of their terms as only three trustee positions were put up for the May 11, 2013 election.”
Double-take
One day after issuing word that BISD would proceed as planned, the district retracted that statement and filed notice that the Board of Trustees would be seeking to revert to districting maps approved in 2001. The matter is up for approval during a special meeting called by the BISD board for 3:30 p.m. Friday, March 8.
“If approved in Friday’s meeting of the Beaumont Independent School’s Board of Trustees, there will be changes in the May 11, 2013 election,” correspondence from BISD Special Assistant to the Superintendent Jessie Haynes released March 5 stated. “The board election will still incorporate a 7-0 single member district plan. However, this plan is the one pre-cleared by the U.S. Department of Justice in 2001.
“School Attorney Melody Chappell informed Superintendent Timothy Chargois that further scrutiny of the Texas Education Code and the Texas Election Code have revealed that the Feb. 21 board adoption of a final 7-0 map fell 10 days short of the time required. Chappell has advised that only a court order may delay the election.”
Attorney Mike Getz says that BISD’s plan to retrogress to a districting plan already deemed unconstitutional under voter representation law is reprehensible.
“Any election is required to be pre-cleared, and that is one of the big problems (BISD attorneys) have with going back to the 2001 plan,” Getz told The Examiner. “It is out of balance – unconstitutional.”
Since the 2001 census maps were drawn, a population shift resulted in districts that were grossly unequal, as revealed by the 2010 census.
“Because of population shift, that 2001 map doesn’t even come close to being representative of the (current) voting population,” Getz added. “At least the map the board adopted on Feb. 21 was equal in population for each of the districts.
“This is blatantly illegal.”
Getz and attorneys for potential BISD Board of Trustees candidates Marcelino Rodriguez, Donna Jean Forgas and Linda Marie Wiltz Gilmore, including attorneys Vann deCordova and Hubert Oxford IV, are attempting to get legal answers to BISD’s most recent announcement by filing a Motion for Emergency Relief in Texas’ 9th District Court of Appeals. In the motion, the petitioners allege that BISD is attempting to circumvent the Texas Education Code and are unlawfully denying the petitioners their rightful seats on the BISD board since all three petitioners were the sole candidates to file for the trustee seats that would be filled as per redistricting law regardless of what BISD’s election order stated.
“Under TEX. ELEC. CODE § 2.052, they are ‘unopposed’ candidates, and must be either declared by BISD’s board as elected to office, or placed on the May 11, 2013, ballot as unopposed,” the motion contends. “To make matters worse, after learning of their mistake, BISD has issued a series of conflicting press releases attempting to discredit (petitioners’) demand but their current position is the most amazing yet. BISD has issued a press release that is disingenuous at best, a clear breach of the public trust at worst, stating that they have now figured out, after 661 days or nearly two years, since the adoption of the 5-2 Plan by the voters in BISD and countless hearings and requests to move quicker by fellow board members and citizens that the approval of the February 21, 2013 Election Order was adopted 10 days short of ninety (90) deadline as required in the TEX. EDUC. CODE § 11.052(f).”
According to the cited law, redistricting must take place 90 days before the election.
“Moreover,” the motion continues, “if it could not get any worse, in an effort to save the current trustees’ positions who serve Trustee District 1, 2, and 3, BISD is now proposing to adopt the 2001 redistricting plan in an effort to correct their alleged statutory oversight (wink, wink). Not only is this redistricting well within the ninety (90) day deadline set forth in the Education Code that they are attempting to utilize to strike the existing 7-0 plan they just adopted, but this is a clear violation of 14th Amendment of the United States Constitution.
“Over the last 661 days, BISD has been playing a very high stakes game of cat and mouse with the public’s trust and they finally got caught. Now that they have been caught, BISD is desperately attempting to unwind everything they have done in hopes of adopting a new Election Order that properly incorporates TEX. EDUC. CODE § 11.053 and hopefully, save the current board members’ positions. If this were a Tom and Jerry episode, it would be the last episode — Tom actually catches Jerry. BISD should not be rewarded for obviously trying to use the Education Code as a sword and shield and should not be allowed to continue this consistent practice of manipulating the laws to save sitting trustees’ positions.”
Current trustees for Districts 1, 2 and 3 missed the filing deadline but District 5 Trustee Mike Neil did file to retain his current position.
Attorney Getz said he is hopeful the motion “will require BISD to conduct a legal and constitutional election” as opposed to “rolling back to a plan from 2001 that is unconstitutional.”
“Ultimately,” he said, “I believe a court is going to make BISD follow the law.”
A proposed order for an election utilizing the district’s 2001 districting plan was requested by at least two of the board’s trustees, but the district’s attorney has not yet provided the requested documentation.

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Backpedaling | The Examiner

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