Source: Sherman Publications

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Judge to hear village council oath case

by David Fleet

March 16, 2011

Goodrich- A former village council member drive to challenge a procedural issue regarding the election of Councilman Doug McAbee will be heard by a circuit court judge on March 28.

Judge Geoffrey Neithercut, of the Seventh Judicial Circuit Court, will hear both sides of a dispute after McAbee failed to sign the oath of office document within 10 days of the date he was notified of his election to office. The law is specified by the Charter of Goodrich.

Under the direction of Council President Patricia Wartella —McAbee signed the oath on Dec. 13 without the majority vote of the council needed for an time extension. McAbee has continued to serve on the council.

Former councilman David Lucik appealed the dispute to the Genesee County Clerk Michael Carr in January. Last month, Lucik was contacted by the Genesee County clerk regarding the issue and requested a legal opinion. Carr requested a summary of the issue from Lucik and referred the matter to the corporation counsel. The counsel is an attorney who acts on behalf of the Genesee County on civil matters and serves as legal advisor to the Genesee County Board of Commissioners and all county departments.

"It's a straight forward review of the village charter," said Michael Gildner, the attorney representing Lucik.

"The charter is very specific about when the oath must be signed. And from the facts, he (McAbee) just did not follow the charter. The seat should be deemed vacated—he does not validly hold the seat. On Dec.13 the council president said twice that McAbee did not receive the paperwork for the oath. And twice he (McAbee) said he did (receive the oath to sign)."

Gildner said there is precedent that reflects the facts of this case.

"There's a case where a school board member waited longer than ten days to take an oath and he (the judge) declared the seat vacated."

McAbee won the election in November, unseating Lucik and former council president Ed York.

In addition, newcomer Phil Jackson and incumbent Rick Horton were also elected. Lucik said he acted on a rumor that McAbee did not sign the oath and sent a FOIA (Freedom of Information Act) to the village for the information regarding the violation.

Doug McAbee said he's eager to get to court.

"I want to get this solved," he said. "I'm positive the real story will come out of who did what. I'm quite positive about it, there's going to be a lot of people surprised. He (Lucik) has nothing."

McAbee will be represented by Flushing Attorney Jim Dillard.

"And just for the record, I hired my own attorney and no village dollars will be used in this case."