Elections board disqualifies Pam Brown, Robert Smith in sheriff’s race

Two Muscogee County sheriff’s candidates the local elections board disqualified Wednesday said they will appeal the board’s decision to Superior Court.

Finding that Pamela Brown and Robert Keith Smith failed to get fingerprinted for a criminal background check by a March 16 deadline, the board voted three to one to disqualify them. Only board member Linda Parker, who represents the local Democratic Party, voted to qualify the candidates. Voting to disqualify them were Uhland Roberts, Eleanor White and Diane Scrimpshire. The board chair, Margaret Jenkins, votes only in a tie.

The vote followed arguments from both candidates’ attorneys, who said their clients made a good-faith effort to meet the deadline, but were deterred by confusion regarding the procedure and the lack of anyone available to fingerprint them on March 16.

Mark Shelnutt, who represents Brown, argued she already complied with the law on May 22, 2012, when she first ran for sheriff and nearly unseated incumbent John Darr in the Democratic Primary. Because the law said she had to comply with the fingerprint requirement “on or before” three business days after candidate qualifying ended, she met the statute’s requirements, he said: “May 22, 2012, is before.”

Alfonza Whitaker, who represents Smith, asked the board to use its discretion to credit his client with “substantial compliance” for his effort to meet the deadline. Smith did all that he was asked to do, and his criminal history, like Brown’s, revealed nothing that would prohibit his running for sheriff.

Disqualifying Smith for a “technical violation” would be denying the voters an opportunity to pick the candidate of their choice, Whitaker said. Shelnutt made the same point while noting Brown’s strong showing in 2012.

Both candidates recalled receiving confusing messages about what they needed to do, and making trips back and forth to Probate Court Judge Marc D’Antonio to complete the required paperwork. The law specifies that the background check must be conducted under the probate judge’s direction.

Because Brown did not want to be fingerprinted through the sheriff’s office, where she worked for 23 years and still feels tension from some former colleagues, she was fingerprinted through the Columbus Police Department. When she was warned March 16 that she was about to miss the deadline, she rushed to the Public Safety Center at 4:48 p.m., but was told no technician was available to fingerprint her, and she would have to come back the next morning. She did, and was fingerprinted then.

She could not go to the sheriff’s office for fingerprinting that day because its technicians leave work at 4:30 p.m., she said.

A 1980 Georgia Supreme Court precedent upheld a Democratic executive committee’s disqualifying a Paulding County sheriff’s candidate who wasn’t fingerprinted, but Shelnutt said the circumstances were different: Not only did the candidate miss the deadline, he didn’t even try, and the committee couldn’t find him, the attorney said. Brown by comparison complied in 2012 and repeatedly tried to comply this year, he said.

The candidates have 10 days to appeal, and both Shelnutt and Whitaker said they would file their appeals as soon as they got documentation of the board’s ruling. Regardless of the outcome, the candidates’ names will remain on the ballot, which already has been printed. The elections office next week is to start mailing ballots to voters serving overseas in the armed forces. Other absentee ballots will start going out April 11, said elections director Nancy Boren.

Early in-person voting for the May 24 election will start May 2.

Georgia law says the Superior Court judge reviewing an election board’s decision may issue a stay that delays the disqualification until a hearing is held. The judge has multiple options in how to handle the appeal.

The court may affirm the board’s decision, send it back for further proceedings, or reverse or modify it “if substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions, or decisions” violate the constitution or other laws, or they exceed the board’s authority, are based on unlawful procedures or other legal error, clearly erroneous in light of the evidence, or “arbitrary or capricious or characterized by an abuse of discretion,” the law says.

Columbus judges may recuse themselves because the sheriff is in charge of courtroom security, presenting a possible conflict of interest. If they bow out, an outside judge will be appointed for the appeal.

Both Brown and Smith qualified as Democrats. If the board’s decision is upheld, it effectively eliminates a contested Democratic Primary for sheriff, leaving former sheriff’s Capt. Donna Tompkins as the sole primary candidate. Darr has said he will run as an independent. His only other challenger is Republican Mark LaJoye, so the race would be decided during the November general election.

This story was originally published March 30, 2016 at 11:42 AM with the headline "Elections board disqualifies Pam Brown, Robert Smith in sheriff’s race."