McCleary mayoral hopeful Jared Berken may not be eligible to run for office in the City of McCleary, despite being on the ballot.

Berken is challenging Mayor Brent Schiller. Schiller was appointed as mayor in 2015 after the abrupt resignation of former mayor Gary Dent. Dent also is running for election in the three-person primary.

According to RCW 35A.12.030 “No person shall be eligible to hold elective office under the mayor-council plan unless the person is a registered voter of the city at the time of filing his or her declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his or her election.”

Berken, a police officer for a Grays Harbor County agency, moved to McCleary in February 2017. The election is certified in November, which is less than one year from February. The mayoral term would begin in January 2018, and that’s a month shy of the year required.

Berken response

When The Vidette brought the issue forward to Berken, he said he believed he was eligible because of language in RCW 35 (not to be confused with RCW 35A). That state statute would have applied different rules to his eligibility if the city hadn’t adopted RCW 35A.12.

When it was noted that the city had adopted 35A.12, Berken took an argument about the semantics, noting that RCW 35A.12 references eligibility to “hold” office.

“It doesn’t say anything about running for office,” Berken said.

However, when Berken filed a declaration of candidacy (as all candidates must file to run for office), it included an oath stating, in part, “… at the time of filing this declaration, I am legally qualified to assume office.”

City attorney Dan Glenn noted that it was his opinion that Berken was not eligible to run for office with the information The Vidette provided about Berken (Glenn had not researched details about Berken beyond the notes The Vidette sent).

“The statutory requirements are that a candidate must (a) have been a registered voter within the city at the time of filing for the position and (b) have resided within the city for no less than one year preceding the candidate’s election to the position,” Glenn wrote in an email to The Vidette. “(The latter language is a bit vague since the election is on one day and the certification of results a bit later, so an argument could arise about which is the date the individual is elected to the position. However, for whatever reason it does not tie compliance with the one year requirement to actually assuming office which normally occurs on Jan. 1.) As noted, the February to November time span would not meet that requirement.”

The eligibility requirements in the state statute Berken referenced have not been applicable to McCleary since 1986, Glenn noted.

Now what?

While it appears unlikely that Berken can hold office or was eligible to run for office in the first place, officials are not sure how to proceed with the information.

“If he’s already filed, by this point he’s on the ballot. He has signed some sort of document stating he meets all requirements to be on the ballot,” said Erich Ebel, communications director for the Secretary of State. “If that’s the case, it will take an act of the court to remove him from the ballot.”

The Secretary of State’s office won’t intervene in the issue.

“Those are things that would begin at the local level,” Ebel said. “There are most likely city ordinances that stipulate what happens if a candidate runs for office. If nothing from the city, then the county. It’s the counties that have the primary responsibility to make sure the elections run smoothly. If McCleary doesn’t have a specific ordinance then Grays Harbor County likely does.”

Grays Harbor County does not have a specific ordinance that governs eligibility, so the matter is governed by state law.

“This is interesting,” Ebel said. “The question now is, ‘Should someone who is in violation of requirements still be allowed on a ballot?’ The answer is clearly no. So the question then becomes, ‘Who’s responsible for making that happen?’ I think the answer is the county.”

“I would suggest the county start making phone calls to other counties to find out what they do in this situation and then start the process,” Ebel added.

Courtroom bound?

The Grays Harbor County Auditor’s Office says the matter will need to be contested before the courts.

“That (length of residency) is not something that we are required to check or validate for the city,” county Auditor Vern Spatz said. “If he got elected, somebody would have to determine if he was eligible to take that office. That would be up to the courts — that wouldn’t be up to us.”

Any voter could challenge Berken’s eligibility.

“It’s too late to take Jared off the ballot. The ballots are printed and mailed,” Spatz said. “We have to wait until the primary happens. If he doesn’t get nominated forward, it’s a moot issue. There’s physically no way to take his name off the ballot at this point.”

Spatz said his office will continue watching the situation as it develops.

As of Monday afternoon, Berken remained optimistic at his chances of winning election in November and he remained steadfast in his determination to seek the position of mayor.

“In a scenario in which I would win the general election, I wouldn’t be able to take office immediately following the expiration of the current mayor’s term,” Berken said, noting his residency issues. “In that scenario, I would ask the city council to appoint a Mayor Pro Tempore until I would have established one year of residency in McCleary, which would be approximately one month after the expiration of the current mayor’s term. At that point, in the same scenario, I would ask that the city council respect the will of the voters of McCleary and appoint me as mayor.”