CALDWELL — Caldwell City Council candidate John McGee will abide by the city’s call for a Seat 6 runoff election between himself and Evangeline Beechler, despite an opinion from his legal counsel that such a runoff would breach city code.

McGee’s counsel, former Idaho Attorney General David Leroy, said in an email to McGee Monday morning, “As requested, I have reviewed the applicable election law and advise you that the city of Caldwell has improperly and illegally requested the county clerk to conduct a runoff election for City Council Seat 6.”

Leroy shared the email with journalists.

However, McGee said he won’t challenge a planned runoff election at a Monday afternoon press conference outside Indian Creek Plaza in Caldwell.

Later, the city of Caldwell issued a press release saying the city will stand by its decision to ask the Canyon County clerk to conduct a runoff election and disputing the accusations of illegality. The press release also said the city is “mindful of the stress and frustration this has caused.”

“City Council candidates invest substantial time and energy in their campaigns, and uncertainty over the meaning of the required ‘majority’ is obviously unfortunate,” the press release said.

McGee, a former GOP state senator, received the most votes in the Nov. 5 election but did not receive more than 50%. That led to confusion because Caldwell city code enacted in 1989 states, “Members of the Caldwell City Council shall be elected by a majority of the qualified electors as established by State Code.”

The term “majority” is unclear because it could be defined as 50% plus one vote, while plurality means more votes than any other candidate.

Since the 1989 ordinance passed, Caldwell candidates have won city council seats with less than 50% of the vote.

In addition, Leroy pointed out a problem with the term “qualified electors.” Under Idaho law, that means all registered voters — not just the voters who participated in an election, he said in his email to McGee.

To win an election, Leroy said, a candidate would need over 50% of votes from all registered voters. Yet typically only 20% to 30% of registered voters cast ballots in any given Caldwell City Council election.

“By that standard, correctly interpreted, no person has been lawfully elected to the Caldwell City Council since that law was put on the books in 1989,” he wrote.

At the press conference, Leroy called the language in Caldwell’s city code “impossible, improbable and problematic.” He said the most destructive thing to do in a democracy is change the rules after the ballots have been cast.

The city of Caldwell on Friday requested the county hold a runoff election for Seat 6, following three days of confusion from officials and voters on whether a runoff was necessary. There has never been a runoff election for any office in the city’s history, said Caldwell’s longtime mayor, Garret Nancolas.

In a statement from the city of Caldwell’s legal team Friday, the city argued that Caldwell’s city code had not been violated.

“The City Attorney’s Office has advised Caldwell that because such candidates took office in good faith under the prevailing application of City Code, and in the absence of any objection or election contest, they hold their offices legitimately and legally,” the city’s press release said.

The city needs to either hold runoff elections for all three city council seats that were up for election on Nov. 5, or hold none at all, Leroy said in his email to McGee.

“The legally correct response in such a situation, as to the election just conducted, is to either continue to ignore the language and declare all three winning candidates elected,” he wrote, “or to hold runoffs for all three seats under the ordinance language as written.”

Winners of Caldwell City Council seats 4 and 5, Jarom Wagoner and Chris Allgood, respectively, won their races with more than 50% of the vote. Wagoner received 53.6% of the vote in his race, and Allgood ran unopposed. However, those are the percentages of voters who cast a ballot, not the percentage of registered voters overall.

The Seat 6 runoff will be between the top two vote-getters: McGee, who earned 39% of the vote, and Beechler, who earned 30.6%. Incumbent Chuck Stadick received 30.2%.

McGee’s lead sparked resistance from the community after he had resigned from the Senate in February 2012 amid an accusation of sexually harassing a female Senate staffer. He pleaded guilty later that year to a misdemeanor disturbing the peace charge for sexual harassment, and he admitted to violating the terms of his probation, stemming from a 2011 DUI case. McGee was sentenced to up to 88 days in jail but was released after 39 days.

Dozens of residents have criticized his candidacy online. On Friday, seven Caldwell residents showed up at Caldwell City Hall to seek an answer to the question of whether the city would call for a runoff election.

McGee said the backlash around his candidacy was a targeted attack by the Idaho Democratic Party, which is chaired by Beechler. Although city council races are not partisan, he said Beechler’s involvement with the Idaho Democratic Party has made this a partisan race.

“Over the years, I have paid my debt,” McGee said.

The tentative date set for the runoff election is Tuesday, Dec. 3 — the same date as Boise’s mayoral runoff election. Canyon County has not announced any polling locations.

Canyon County officials sought input on the necessity of a runoff in Caldwell from the Secretary of State’s Office and the Office of the Idaho Attorney General, which both said the applicable ordinances and statutes indicate a Caldwell City Council candidate must receive more than 50% of the votes or a runoff is required, according to the city’s statement.

However, Leroy told McGee he believed McGee would win if he were to challenge the decision in court. McGee said he won with an “overwhelming” majority but would rather move forward with a runoff than go through a long legal battle.

Leroy also called for the Caldwell City Council to hold an emergency meeting to clarify the language in the city ordinance, “to provide that the council members shall be elected by a majority or plurality ‘of the votes cast’ in such election by ‘qualified voters,’ “ he wrote.

In the Friday press release, city officials announced they plan to clarify the ordinance in the next few weeks.

Beechler’s wife, Chelsea Gaona-Lincoln, said Beechler would not provide comment on McGee’s statement Monday because she was observing Veterans Day.

Editor’s Note: An earlier version of this story incorrectly stated that it was McGee who claimed Caldwell’s request for a runoff was illegal. Rather, McGee received that legal opinion from attorney David Leroy.

Erin Bamer is the Nampa/Caldwell reporter. Contact her at 208-465-8193, or ebamer@idahopress.com. Follow on Twitter @ErinBamer.

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