Rusk councilmen, citizens file 2nd lawsuit against Rusk, mayor

A pair of Rusk councilmen, with the aid of a pair of Rusk citizens, have brought a second lawsuit against the city of Rusk, Rusk Mayor Angela Raiborn and Rusk City Secretary Rosalyn Brown.

District 4 Councilman Ken Ferrara and District 5 Councilman Jan Pate, along with District 4 resident Susan Keller and District 5 resident Bill Holland, filed the suit on Wednesday, Dec. 5, in Cherokee County’s 369th District Court, and papers were served on the three defendants late Thursday, Dec. 6. Also on Dec. 6, 369th District Judge Michael Davis filed papers to recuse himself as judge in the suit, and the 12th Court of Appeals Judge Diane DeVasto of Tyler has been assigned to hear the case. No court date has been set at this time.

The suit was filed in response to the recall petitions concerning Pate and Ferrara, recently circulated to Rusk voters. Should the signatures on each petition pass the vetting process, both councilmen would be included on the May 2019 ballot, to allow Rusk voters to decide if the councilmen should keep their seats for the remainder of their two-year terms.

“Once again, we are forced to go to the courthouse to seek legal remedies to protect our rights as councilmen and represent the people in our districts who elected us,” Pate said in a written statement provided to the Cherokeean Herald. “We have hired an attorney, and he has filed a lawsuit because it is the only remedy that we have for this unjust and illegal recall. He has advised us not to try the case on Facebook, in the newspapers, or in public remarks.”

The Petitioners’ attorneys are Sten Langsjoen with the Langsjoen Law Firm and Donna Broom with the Broom Law Firm, both in Tyler – both of whom represented the councilmen earlier this year, in the first lawsuit brought against the city and other council members.

“I don’t really know what the details are on this, other than what the papers we were served say,” Rusk City Manager Jim Dunaway, who was served the suit on behalf of the city, said on Friday, Dec. 7. “We will be discussing this issue in executive session at our next council meeting.”

Rusk City Council meets at 6 p.m. Thursday, Dec. 13, at the Rusk Civic Center, 555 Euclid St., Rusk. All are welcome to attend.

The newest lawsuit alleges a civil conspiracy instigated by Raiborn and other unnamed persons “to accomplish a lawful act through unlawful means … which were the proximate cause of damages suffered by petitioners Pate and Ferrara.” Suit papers list slander, libel and defamation of character; solicitation of funds to support a political agenda without complying with filing requirements required by law; and using said funds to finance an improperly initiated recall petition campaign as the unlawful acts committed.

“Petitioners would show that mandatory requirements of the Rusk City Charter were violated when the application for recall petitions as to Petitioners Pate and Ferrara were solicited and issued,” court documents state. “… these violations include 1) the failure of any of the applicants to swear or affirm that the information contained in their supporting affidavit was based on personal knowledge and was true and correct; and 2) the recall petitions were delivered to a non-city resident who was not qualified to receive the recall petitions. These failures constitute acts of negligence regarding ministerial acts for which government immunity is not enjoyed by the city or Brown, in her capacity as city secretary.

“Because (the) Petitioners face undue prejudice, irreparable harm and/or immediate harm due to the pending certification of the recall petition for Councilmen Pate and Ferrara, Petitioners seek a temporary restraining order and further injunctive relief to restrain and/or enjoin the city and Brown from certifying the recall petitions regarding Pate and Ferrara.”

The suit further states, “In May of 2018, Jan Pate was elected City Councilman be the registered voters of District 5 of the city of Rusk. Also in May of 2018, Ken Ferrara was elected City Councilman by the registered voters of District 4 of the city of Rusk. Councilmen Pate and Ferrara undertook steps to develop greater transparency in city government and greater accountability for budget items and financial dealing undertaken by the city of Rusk. Their goals were to identify waste and eliminate same; avoid increases in city taxation where possible; and improve city growth. These goals were consistent with the voters’ goals for these two councilmen within their respective districts.

“Toward the end of frustrating the goals described above, Mayor Raiborn announced an interpretation of the city charter that would change a long-held city council voting policy requiring a three-vote majority to a policy requiring a four-vote majority. This policy had the effect of disenfranchising the voters of the various city districts including Districts 4 and 5. This change in policy further had the effect of preventing Councilmen Pate and Ferrara from effectively representing the citizens of their respective districts.”

The suit also alleges negligence on City Secretary Brown’s part.

“Key to their fraudulent scheme was the improper ministerial conduct of Defendant Rosalyn Brown, in her capacity as city secretary, who has violated her obligations described in the Rusk City Charter regarding recall petitions,” court documents state. “It is believed at this time that Defendant Rosalyn Brown, in her capacity as city secretary, intends to certify as “valid” the recall petitions for Councilmen Pate and Ferrara. This certification is expected to be completed at any time; however, to Petitioners’ best knowledge and belief, this certification has not yet been made by Defendant Rosalyn Brown, in her capacity as city secretary.”

According to court documents, the Petitioners are seeking “a judgement for monetary damages … in an amount in excess of the minimum jurisdictional limits of (the) court and in favor of Councilmen Pate and Ferrara; … orders and/or judgement for temporary injunctive relief, permanent injunctive relief and a temporary restraining order to issue on proper application for ex parte temporary restraining orders upon proper application and request, as to the city of Rusk and Rosalyn Brown, in her capacity as city secretary, restraining or enjoining said defendants from certifying the recall petition made the basis of this action.”

An ex parte court order is designed to provide a petitioner with immediate protection from an abuser.

“To our knowledge, there’s been no such order served at this time,” Rusk City Attorney Anthony King said on Monday. “Until that order to stop certification of the petition is served, the city of Rusk has a duty to carry out the will of the citizens of Rusk, under the charter.”

City officials said the petition’s signatures had been verified by Brown as of 8:10 a.m. Monday “in accordance with article 13 of the city charter,” and notarized by an independent third party, Kristi Walley with Cherokee Title Co. The results of the petition are set to be presented to the Rusk City Council during the Dec. 13 meeting. Committee members collected 701 and 702 signatures on Pate and Ferrara, respectively.

“As per the election code, any voters deemed “in suspense” cannot be counted in the total number of registered voters,” Brown explained on Tuesday. “The most recent voter registration list I’ve received from the County Elections Department, dated Dec. 7, totaled 1,851 qualified voters (not counting any “suspense” voters) inside the city limits of Rusk.”

According to the Texas Secretary of State’s website, section 277.0024 of the Texas Election Code, which has to do with computing the number of signatures for petitions, states, “‘S-list’ or ‘suspense list’ voters are not included in calculating the number of signatures needed. However, an S-list voter who meets the requirements voting in the territory could sign the petition if he or she still lives in the affected territory.”

According to Cherokee County Elections Shannon Cornelius, a “suspense voter” is any citizen who registered to vote, but whose voter registration card was returned to the Voter Registrar’s office via the U.S. Postal Service as undeliverable. Those citizens have two election cycles to rectify the problem with their addresses, and still be able to vote in said elections.

Since Nov. 9, a committee of Rusk residents have been collecting signatures on two separate petitions, citing “conduct unbecoming of council members.” Both petitions’ affidavits specifically list, as a reason to recall each councilman, an incident where Ferrara “made statements of a racial and sexual nature” to Brown in the presence of Councilman Pate – who failed “to put an immediate stop to it just one day after publicly announcing a zero-tolerance policy he would have regarding harassment of female city employees, especially sexual harassment.”

The Rusk City Council convened into executive session for about two hours, during a special council meeting held Thursday, Oct. 18, to discuss the complaints Brown filed against Ferrara on Wednesday, Oct. 17, concerning certain racially and sexually inappropriate comments he made to her while in her office on Tuesday, Oct. 16, in front of District 5 Councilman Jan Pate and city employee Pam Tyer, according to her complaint.

Upon the recommendation of King, the Council unanimously voted to publicly reprimand or censure Ferrara for his statements at the October meeting.

“Censure is a public reprimand and statement of disapproval of (Ferrara’s) actions,” King said in October. “Because the city’s charter does not allow for any specific discipline for a council member, this is really the harshest punishment available for the purpose of this incident.”

The new suit documents include the outcome of the first suit the two councilmen brought against the city, the mayor and two other councilmen earlier this year. Cherokee County Second District Judge Chris Day ruled the majority votes needed to pass an item of city business is three, not four. City records show the city spent a total $12,676.30 on legal representation -- $8,142.06 with the Norman Law Firm and $4,534.24 with Sinclair and King Law Firm – on the first law suit.

“Almost immediately following the publications of (Judge Day’s) decision, Defendant Raiborn and other conspired to fraudulently initiate a recall campaign against Councilmen Pate Ferrara [sic]. This recall campaign was intended to cause the voters of Districts 4 and 5 to lose their elected representatives by subjecting Councilmen Pate and Ferrara to a city-wide recall election process and was intended to defame and professionally damage Councilmen Pate and Ferrara.

“Defendant Raiborn, began working directly or indirectly through a self-proclaimed “Rusk Recall Petition Committee” to effect a recall vote as to Councilmen Pate and Ferrara. Members of the “Rusk Recall Petition Committee” include Mark Raiborn, the husband of Defendant Raiborn; Emily Duke, the future daughter-in-law of Defendant Raiborn; and Kimberly Beathard … a nonresident of the city of Rusk.

“The self-proclaimed “Rusk Recall Petition Committee” has engaged in public dissemination of false and misleading information; has solicited funds for political purposes improperly; and has disseminated one or more documents and/or publications purposely designed to appear as if generated or approved by the city of Rusk.”

Committee members include Rusk residents from all five city voting districts. Core committee members are initial petitioner Toni Dillard, James Sanchez, Thomas Adams, Mark Raiborn, Robby and Bridget Tosh, Collie and James Hagen, Emily Duke, Drenda and Steve Halbert, Rachael and Karen Loden, Ryan and Reagan Robertson, Monica Thomasson and Steve Goode. The five committee members who were officially issued petitions are Rusk residents Emily Duke, Steve Goode, Steve Halbert, Mark Raiborn and Oliver Sturns.

“In my opinion the lawsuit brought against myself and Rosalyn Brown is unnecessary and ludicrous,” Mayor Raiborn said in a written statement provided to the Cherokeean Herald. “I believe it is an attempt to block the will of the citizens of Rusk to conduct a recall election. The citizens of Rusk have a right to remove from office elected officials prior to the ending of their terms. There is a very specific set of guidelines outlined in our charter to do so and the Rusk Recall committee to my knowledge have followed all such guidelines. In just under two weeks more than 35 percent of registered voters have signed the petition to have a recall election in May. I believe that is an overwhelming response from our citizens. When that many citizens are willing to put their names on a petition, they deserve to be heard.”

King also on Monday said information that stated all citizens of Rusk would be allowed to vote in the recall election in May was incorrect.

“It’s a totally understandable misunderstanding, but as per the charter, only voters in the districts in question will be allowed to vote in the recall election, should one be called,” King clarified.

***Editor's note*** As of Tuesday afternoon, the Rusk City Council agenda had been amended to remove action and discussion on the recall petition(s) as per a temporary restraining order the 12th District of Appeals Judge Diane DeVasto issued as part of the current ongoing lawsuit. A court date has been set for 10 a.m. on Monday, Dec. 17 to discuss only the temporary restraining order in the Tyler court.