Referendum Dispute

Winchester Voter Registrar Elizabeth Martin holds a sample ballot Monday afternoon in her office at 107-A N. East Lane. Ballots for the Nov. 5 general election have already been prepared and will include a referendum question asking city voters if they want the Winchester School Board to be elected or appointed. If disagreements about advertising the referendum are not resolved, the voting results could be deemed invalid.

A correction has been made to this article.

WINCHESTER — A dispute over publication of a legal notice could kill a Winchester ballot referendum before a single vote is cast.

The referendum in question asks city residents if they want City Council to continue appointing members to the Winchester School Board or if board seats should become elected positions.

Virginia law requires that ballot issues be properly advertised in a community’s newspaper of record — in this case, The Winchester Star — on a weekly basis beginning at least three weeks before an election.

Roya Milotte, chief organizer of a petition drive that led to the School Board referendum being placed on the Nov. 5 ballot, has been informed by the Winchester Circuit Court Clerk’s Office that she is responsible for paying for the newspaper ads because she filed the petition with the court, though the Clerk’s Office is responsible for placing the ads. Some officials, however, believe the Clerk’s Office is responsible for paying for the ads.

Milotte, who paid about $225 of her own money to file the petition, said on Monday she cannot afford the $782.20 cost of publishing the notice in The Star three times starting Oct. 15, and she is not certain of the legality of seeking contributions from other people to pay the amount.

Even if the notice is published, the referendum’s fate might be in jeopardy because of how the notice is worded, according to State Board of Elections information.

The notice submitted for publication in The Star by the Clerk’s Office is a copy of the July order issued by Winchester Circuit Court Judge Alexander Iden authorizing that the referendum appear on the Nov. 5 ballot. It is labeled “Roya Dawn Milotte, Petitioner vs. School Board — Winchester City.”

Winchester Voter Registrar Elizabeth Martin said the notice should not be presented as a legal dispute between two parties, but rather as public information for the city’s registered voters. And, based on her understanding of the law, the Clerk’s Office should pay for the ads.

“Don’t treat it like somebody’s personal lawsuit or divorce,” said Martin, who provided The Star with a referendum notice published in 1992 in Bristol that uses state-approved wording. It is labeled “Order of Publication” and is comprised of a single sentence that describes the referendum and tells voters when it will be on the ballot.

The notice provided to The Star by Winchester Circuit Court Deputy Clerk Will Gardner is seven paragraphs long and includes details about the submission of petition signatures and instructions on how the referendum should be advertised. Due to the length of the notice, the total fee to advertise it in The Star three times over three consecutive weeks is $782.20. A notification similar in length to the Bristol referendum notice would cost an estimated $128.70 to run over the same three-week schedule.

This is the first time Winchester has had a citizen-initiated voter referendum on the ballot, which is responsible for some of the confusion.

The ballots with the referendum question have already been printed. However, if the referendum isn’t properly advertised to the public in advance, the voting results could be deemed invalid.

Gardner, who is handling the referendum advertisement because Winchester Circuit Court Clerk Terry Whittle retired on Oct. 1, asked a judge to settle the billing dispute. On Monday morning, 26th Judicial Circuit Court Judge Kevin Black ruled that Milotte is responsible for paying for publication of the notice, while the clerk’s office is responsible for placing the ad.

According to the State Board of Elections, there is no mechanism to appeal Black’s decision.

Martin disagreed with the judge’s ruling and said, “This will be a precedent statewide.”

Martin added that she has found nothing in Virginia law that says a citizen who filed for a voter referendum is also responsible for paying for legal notices to advertise it. Also, the information packet prepared by the State Board of Elections for people who want to petition for a voter referendum makes no mention of citizens being held responsible for payment of ads.

Due to conflicting information regarding advertisement of the referendum, Gardner said on Monday afternoon he is still seeking clarity on how to proceed. He is scheduled to meet today with City Manager Eden Freeman and a representative from the law firm of Litten and Sipe, which has been contracted to serve as the city’s attorney.

Gardner, a Democrat who is running against Republican Tara Helsley in the Nov. 5 election for Winchester Circuit Court Clerk, said it was never his intention to interfere with the voter referendum for an elected School Board.

“Not at any time or any point,” he said. “I’m just going by the book.”

— Contact Brian Brehm at bbrehm@winchesterstar.com

(12) comments

Chaoslimited

And I meant to commend Mr. Brehm for his reporting on this mess. I can't imagine trying to put all this chaos and relevant cast of characters into some semblance of an article. Please keep us posted on the city's action (or inaction).

Chaoslimited

Wow... just... wow. No wonder there's never been a citizen-initiated referendum before! For a city that was chartered in 1752, you'd think the elected officials would have their act together. I'm curious. Does Winchester still have a poll tax?



The whole process sounds like one of those "how many people does it take to... " jokes. Let's look at who is involved in this mess. There are: the original petitioner Roya Milotte, the Winchester Circuit Court Clerk's Office, Winchester Circuit Court Judge Alexander Iden, Winchester Voter Registrar Elizabeth Martin, Circuit Court Deputy Clerk Will Gardner, Judicial Circuit Court Judge Kevin Black, the State Board of Elections, City Manager Eden Freeman and for good measure, the law firm of Litten and Sipe (can't the city afford a full-time attorney?).



So help me out. Is the goal of the city to invalidate the referendum before the voters even get a chance to vote? Is it to cast doubt with the voters so fewer will be involved?



No wonder so many American feel disenfranchised. It reminds me of the quote I learned in High School: “Power tends to corrupt and absolute power corrupts absolutely. "



Congrats Winchester. You're well on your way to invalidating 100s of hours of work and thousands of registered voter signatures gathered by volunteers to put a referendum on the ballot. We wouldn't want uppity citizens to get too involved now would we?



All I can say is "Good luck Ms. Milotte. I hope you get a chance to see how your hard work plays out with the voters."

CTJINVA

Oh for goodness sakes, how is it the responsibility of the citizen to foot the bill for something that the City needs to change. This seems to me as if the City is fighting to protect their (stupid) way of finding members of the School Board. The City just raised taxes, so I think they should have plenty of money to pay this $800 fee. Or maybe we figure out how to bypass the newspaper all together and use the FREE City notification services and social media to make these announcements. For those not online, they can post the notices outside the City Hall.

kellymw

"Once they had the signatures, (Carmen) Sitton said they were able to reach out to the Virginia Education Association PAC for funds that are reserved for this type of initiative including the required legal ad in the newspaper.



“It made me excited to see that basically social media, news outlets [and] word of mouth helped get this referendum passed,” Sitton said. “…Knowing how little amount of funds that we used, we know that it’s possible to have a successful campaign on a shoestring budget, so to say.” "



Quoted from the Amherst New Era-Progress, November 8, 2016, "Amherst Votes 'Yes' to Referendum for Elected School Board"

DavidShore

The Clerk of the Court position is NOT a policy-making position. They take an oath to follow the laws/statutes of the Commonwealth. That is why Interim Clerk Will Gardner concurred with Clerk Terry Whittle to get a judge's legal opinion. The judge ruled and the Clerk's office is going further in trying to see the correct result occurs. Registrar Liz Martin is not a lawyer and shouldn't be giving legal advice. There is some concern that this issue is being used for political purposes against Will Gardner.

CTJINVA

Exactly correct, IMHO.

Harker2345

"Petitioner vs. School Board — Winchester City” This format was problematic. The main concern should be that the election results stand and are not invalidated because of an avoidable error.

kellymw

I'm sticking with Will. Experience means checking on the legality of spending $782.20 of the taxpayers' money on advertising a referendum filed by a single citizen rather than simply paying for the advertisement and finding out later that it was illegal.

jwbbud

#1 reason I wouldn’t vote for will now!! Experience means incompetent, doesn’t wanna listen to ideas

CRT

Are you saying Tara Helsley wouldn't follow Judge Black's order?

Zman72

Call your friends down in Amherst County who did this in 2016 and ask them who paid for the advertising - https://www.newsadvance.com/new_era_progress/news/amherst-votes-yes-to-referendum-for-elected-school-board/article_fb596a4a-a626-11e6-a8f4-ef19b0e83d0b.html



Additional Google searches will turn up other localities in Virginia who have had similar referendums and this never seemed to be an issue.



Quote from the article, "Once they had the signatures, Sitton said they were able to reach out to the Virginia Education Association PAC for funds that are reserved for this type of initiative including the required legal ad in the newspaper."

DavidShore

This is a very important bit of information. It clearly states the PAC funds paid for the ad NOT Amherst County.

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