Bill would require grounds for seeking recall elections

The Government, Military and Veterans Affairs Committee heard testimony Jan. 28 on a bill that would set criteria for initiating the recall of an elected official.

Under LB224, sponsored by Lincoln Sen. Bill Avery, only malfeasance, misfeasance, nonfeasance or conviction of a crime involving an act of dishonesty or a false statement would be recognized as reasons for initiating a recall petition. Currently, recall efforts do not need to be based on specific reasons, Avery said.

The bill defines the criteria as follows:

• malfeasance is the knowing and intentional commission of an unlawful or wrongful act by a public official in the performance of his or her duties that infringes upon the rights of a person or entity;
• misfeasance is the negligent performance by a public official of a specific act that is a required part of his or her duties; and
• nonfeasance is the knowing and intentional failure to perform a specific act by a public official that is a required part of his or her duties.

Under LB224, one or more registered voters proposing the recall of an elected official would be required to submit a statement of 60 words or less containing the allegations of acts sufficient to warrant a recall.

The subject of a recall petition effort would have 20 days after receiving a copy of the affidavit alleging misconduct to submit a defense for inclusion on the petition, or the official could challenge the allegations in district court. If the court found the allegations insufficient, a recall petition would not be issued.

Avery said the current recall process is flawed because no grounds are required for initiating a recall petition.

“This process should be reserved for egregious breaches of the public trust,” he said. “Frivolous recalls are divisive and they degrade our political process.”

Lynn Rex of the League of Nebraska Municipalities testified in support of the bill, but said provisions referring allegations to the district court should be removed because they fail to provide enough protection for office holders.

For example, the bill would not give a falsely accused elected official sufficient time to educate voters as to his or her innocence, she said. In addition, Rex said, the bill indicates that the district court, which would rule without a hearing, should err on the side of the petitioner in determining whether the accusations rise to the level required to issue a recall petition.

“It would be hard to stop someone from making up allegations,” she said.

Kent Bernbeck of Elkhorn testified against the bill, saying the current system works well. Nebraska has not seen an “epidemic” of recall efforts, he said, because citizens are wary of frivolous attempts to remove office holders.

“I think the citizens are self-regulating,” he said.

Greg Lyons also testified in opposition, saying the bill is biased in favor of elected officials. While citizens are limited to a 60-word statement of allegations, he said, the bill sets no such limit on an accused official’s response.

“This runs completely counter to what a free people have a right to,” Lyons said.

The committee took no immediate action on the bill.