BY Susan M. Brazas for Lawyers.com
Another month, another Congressman resigns in a sex scandal. Rep. David Wu (D. Or.) resigned amid allegations he engaged in "unwanted" sexual conduct with a high school girl. The girl, who has since turned 18, is the daughter of one of Wu's campaign contributors and longtime friends. Wu has called the encounter, which has not been described in detail, consensual.
Wu has a history of what some call aberrant behavior and has acknowledged receiving mental health treatment. According to reports, his antics led his Congressional staff to hold an intervention for his benefit. As the allegations of sexual misconduct surfaced, Wu first refused to resign. House Leader Nancy Pelosi called for an ethics committee investigation, which could have led to sanctions including expulsion. When he resigned, Wu said he was doing so because he could not otherwise care for his family while battling the charge and representing his constituents.
Wu's resignation is the third in 12 months of House members accused of inappropriate personal behavior. Anthony Weiner resigned when his sexting habits became public. Christopher Lee also resigned when his Craigslist personal listing hit the news.
When you cast your vote for an election candidate, you're showing your confidence and trust in that candidate. What happens when in office that person betrays your trust or commits a crime? Can you have a do-over? In some cities and states the answer is yes.
Wisconsin Prosecutor Resigns in Sexting Scandal
Ken Kratz was a Wisconsin District Attorney who returned to office for several terms. During an assault case he was trying, he sent 30 suggestive and inappropriate text messages to the victim. He commented on her looks and asked if she'd like to have sexual liaison with him.
Understandably, the victim made the texts public. They sparked outrage in the community. The DA initially refused to resign. He did so only after the Wisconsin District Attorneys Association and public officials demanded it.
Elected Officials Have a Right to Hold Office
It seems funny to say it, but elected officials have rights in their offices. They can't be kicked out or made to resign for no reason. This also would violate the rights of the voters who elected them in the first place.
But elected officials can be booted from office before their terms expire. This can happen one of two ways. They can be removed from office for some criminal or unethical act. In some places they can also be recalled by the voters – for any reason or none at all.
State and Local Governments
Voters have a direct say in recalling elected officials in some states. Ohio and California are two states allowing certain officials to be recalled. In California, even the governor can be recalled. In Ohio, only local officials can be recalled.
The laws vary on how the recall happens. In Ohio a recall starts with a petition. If the petition gains enough signatures, the recall will be put on a ballot in an election. The ballot includes candidates to replace the official. If a majority of the voters cast ballots to recall, whichever of the other candidates gets the most votes will take office.
An elected official in Ohio can't be recalled until he's served at least one year in office. It seems only fair to give the official some time to govern if he can be recalled for no particular reason.
Recently residents of the City of Bell, California, petitioned to recall numerous elected officials. The officials, including the mayor, are accused of paying themselves outrageous salaries. The recall election is scheduled for March, 2011.
Elected state officials can also be expelled from office by their peers or sometimes the governor. In Wisconsin, for example, the governor can remove elected county officials, like a district attorney.
This can only be done for "cause." Cause simply means a good reason, usually described in the law, to do so. The official must be given a copy of the charges against him. He must have an opportunity to be heard, or defend himself. These safeguards are required by constitutional principles of due process, which calls for a fair hearing.
Sometimes the laws provide for automatic expulsion of an elected official from office. This usually happens when the official is convicted of a felony or other specific crime.
Foul play by elected officials can be met by concerned citizens. Whether the law requires an investigation by other officials, or permits citizens to recall bad actors by vote, we the people, can do something about it.
Questions for Your Attorney
- How much does it cost to get a recall petition on the ballot?
- Who decides if there's enough evidence to expel an official?
- How can elected officials like prosecutors or judges investigate themselves?