Birmingham City Commissioner Pierre Boutros' name will not be appearing on the city general election ballot this November following an announcement by city clerk Cherilynn Mynsberge on Friday, August 16, that she could not certify the incumbent for reelection after both a further review of election law and advice from the state of Michigan Bureau of Elections in the Secretary of State's Office, which supported a county elections official's earlier ruling that, due to failure of the candidate to comply with campaign finance reporting requirements from a past election, his name should be removed from the list of official candidates.
Mynsberge announced her decision in a memorandum issued to Birmingham City Manager Joe Valentine which was also forwarded to city commissioners on Friday as part of a packet of information in advance of a commission meeting scheduled for Monday, August 19.
Boutros was first elected to the Birmingham City Commission in November 2015, filing as a candidate in July 2015, and is completing his first four-year term.
The issue of Boutros' eligibility to appear on the ballot was first raised weeks ago when Joe Rozell, Oakland County Director of Elections, ruled that the city commissioner, who had filed to run for another term in the November 5 election, was ineligible for reelection to the city commission under Michigan election law.
Rozell sent a letter to Birmingham City Clerk Cherilynn Mynsberge dated July 30 noting that his office was in receipt of Boutros' affidavit of identity for city commission but the elections division of the county clerk's office could not certify the city commissioner as a candidate for this November's election because of his failure to comply with campaign reporting law. Rozell said the problem had to do with candidate campaign finance reporting problems dating back to July 2015.
In his letter to Mynsberge, Rozell informed the city clerk to “consider this as notice to not certify Mr. Boutros as a candidate to your Board of City Election Commissioners.”
Rozell said certified letters had repeatedly been sent to Boutros, with Boutros' signed signatures for receipt. All late filing fees were promptly paid, but other corrections or filings were not addressed, Rozell said..
“After a review of our records, we have determined that Mr. Boutros failed to file a required amended 2016 Quarterly report. MCL 168.558(4) as amended states, 'An affidavit of identity must include a statement that as of the date of the affidavit, all statements, reports, late filing fees and fines required of the candidate...have been filed or paid,'” Rozell wrote in his letter to Mynsberge.
He further wrote, the statute states, “An officer shall not certify to the board of election commissioners the name of a candidate who fails to comply with this section, or a name of a candidate who executes an affidavit of identity that contains a false statement...”
The statute, which was updated and took immediate effect December 28, 2018, states if the affidavit is inaccurate, it is considered perjury, which in Michigan is a felony and “is punishable by a fine up to $1,000 or imprisonment for up to five years, or both.”
The city's first response to the position of county election officials was that Birmingham had dutifully carried out its responsibilities which were to make sure the candidate petition headings were correctly filled out and the right number of signatures were collected and verified.
In her memorandum to the city manager on Friday, Mynsberge wrote: “Campaign finance is a function of the county and the state, not the local government. Further, the portion of the statute cited by Oakland County falls under a chapter in Michigan Election Law pertaining to primary elections. Because the City of Birmingham does not have a primary provision in its Charter I was concerned that the authority to disqualify a candidate from the ballot based on campaign finance issues did not reside with the local clerk. I sought clarification from Oakland County and from the City Attorney, and was not convinced the law spoke specifically to the local clerk having jurisdiction over campaign finance violations.
Therefore I sought clarification from the Michigan Secretary of State’s Office, from the Bureau of Elections. This morning I received an email from the Election Liaison Division agreeing with Oakland County’s position. “
Downtown newsmagazine's review of Boutros' campaign finance statements file found numerous records of filing errors and notices of failures to file, as well as notices of late filing fees. Downtown found 22 notices of error or omission notifications from the county election office, and three letters to the Michigan Attorney General from Rozell notifying that office of Boutros' failure to file required quarterly statements.
Patrick D. Crandell, attorney for Boutros, responded in an August 8 letter to Mynsberge that county elections officials had failed to notify Boutros in a timely manner as provided by election law, although county records contradicted this claim.
Crandell further said that while “Boutros did file amended quarterly statements after filing his affidavit, it doesn't mean his affidavit was false or that he should be disqualified as a candidate.”
Crandell cited precedent where Michigan courts recognized that mistakes in affidavits can be timely corrected, in Berry v Garrett, (2016).
The Birmingham City Clerk, in her memorandum to city officials, noted that Boutros had addressed the quarterly report but she was left with no alternative after hearing from the state: “Although Mr. Boutros filed the amended quarterly report on July 30, 2019, the report was not on file with Oakland County on the day he signed his Affidavit of Identity. Therefore, at the direction of Oakland County and the State of Michigan, I am unable to certify Mr. Boutros to the ballot for the November 5, 2019 General Election.”
In terms of options for Boutros, he could go to court to attempt overturning the city clerk's decision and he could run a write-in campaign for the city commission position. Under Michigan election law, write-in candidates have until October 25 to file a declaration of intent form for the November 5 election.
A total of seven other candidates filed petitions and have been certified for the election to determine four positions on the Birmingham City Commission.
Two incumbents whose terms were expiring, Patty Bordman and Carroll DeWeese, filed petitions to run for reelection for a second four-year term on the commission. Commissioner Andy Harris opted to not seek another term due to time constraints.
Also filing to run for a seat on the commission were Clinton Baller, Jake German, Brad Host, Therese Longe and Matt Wilde.