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Fargo city attorney, disputing Jaeger's interpretation on recall effort, seeks AG opinion

Dave Piepkorn

FARGO — A recall effort against City Commissioner Dave Piepkorn is likely to run afoul of state law, City Attorney Erik Johnson said in a Tuesday, April 11, letter to Attorney General Wayne Stenehjem.

But the Fargo attorney wants Stenehjem to weigh in and settle the matter.

Johnson disagrees with Secretary of State Al Jaeger, whose office in March gave petitioners the go-ahead to gather the 3,504 signatures needed to force a recall election of Piepkorn.

According to the state Century Code, "an official whose office is on the ballot at a regularly scheduled election occurring within one year is not subject to recall," the city attorney said in his letter.

The question is what is the event that must happen more than a year before June 12, 2018, which is when Piepkorn would already be on the ballot if he were to seek re-election.

If it begins when the city auditor finds there are enough valid signatures to call a special election, then Jaeger is right and there's time for the recall to happen before the one-year buffer kicks in.

If it begins with the special election itself, then Johnson is right and Fargo voters couldn't see Piepkorn on a city ballot until 2018.

Andrew J. Lenzmeier, chairman of the recall committee, wondered if the letter wasn't a way for Piepkorn, who has gained notoriety for his statements on settlement of refugees here, to shut down the recall. Though he didn't have a tally of the signatures gathered so far, Lenzmeier said Wednesday he's confident his group will have enough by the May 12 deadline.

Johnson said he didn't coordinate with Piepkorn at all. He said the two didn't talk about the recall prior to sending out the letter, and he only called him afterwards to tell him about the letter as a courtesy.

As the city attorney understands it, Jaeger's office has long used the day an election is called to determine if it falls afoul of the one-year rule. By state law, the city auditor has 30 days to make the call after receiving and certifying the signatures, which means it would have to happen no later than June 11.

Lenzmeier has said his group intends to submit signatures on May 8.

In his letter, Johnson cited several reasons why he thinks Jaeger's practice is incorrect. The Century Code appears to be silent on the matter, and Jaeger's office has said it could find not attorney general's opinion on the issue.

The state constitution, Johnson said, also specifies a period during which an official may not be recalled, and there the date of the special election is the event that counts.

The way the Century Code was amended in 2007 also supports that conclusion, he said. The event used to be "the date the petition is submitted to the secretary of state for approval for circulation," he said, but lawmakers chose not to specify any event when amending the law, which probably means they meant to make the special election itself the event.

State law says a special election may not be held earlier than 95 days and later than 105 days after the city auditor certifies all signatures. Assuming signatures are submitted May 12, a special election could be as late as Sept. 24, around nine months before Piepkorn must run for re-election.

Johnson said he doesn't know how early the Stenehjem's office can provide an opinion and realizes that the attorney general's staff may be busy during the ongoing legislative session.

Tu-Uyen Tran
Tran is an enterprise reporter with the Forum of Fargo-Moorhead. He began his newspaper career in 1999 as a reporter for the Grand Forks Herald, now owned by Forum Communications. He began working for the Forum in September 2014. Tran grew up in Seattle and graduated from the University of Washington.
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