JCTA Election Challenge

ANNA STEWART WHITES
Attorney at Law
P.O. Box 4023
Frankfort, KY 40601
AnnaWhites@aol.com

C & A Committee
JCTA President
Jefferson County Teachers Association 
1941 Bishop Lane, Suite 300
Louisville, KY 40218

CC via email: 

President Brent McKim brent.mckim@jcta.org
JCTA Executive Director DeeAnn.Flaherty@jcta.org
UniServ Director Elana.Crane@jcta.org
UniServ Directors Antonia.Lindauer@jcta.org

On behalf of:
{Candidate Names Redacted)
and others who have asked to have their names withheld

February 17, 2021

ELECTION RESULTS CHALLENGE

Dear Board of Directors, JCTA President and Credentials and Election Committee:

This is a legal challenge on behalf of above-named complainants to the conduct and certification of the election for JCTA Elections. This challenge is timely and brought in accordance with the JCTA Appendix A Elections – “Procedure for Challenge,” Section I, p. 47. The election was conducted from 6:00 a.m., January 27, 2021, to 5:00 p.m., February 3, 2021.

Bylaw 6.1.b provides for a Credentials and Elections Committee (C & E Committee) to supervise and manage elections, including certifying elections in accordance with Governance Materials Appendix A and other relevant policies and procedures.  That Committee erred and intentionally or unintentionally breached mandatory procedures when it conducted the election at issue and issued a finding as to the results of the election.  The C & E Committee must set aside the improper result and conform its actions to the requirements as published in the Guidelines, policies, procedures and bylaws.

JCTA Governance Materials Section XII -3 provides that The Board of Directors has the responsibility for interpretation of the Constitution, the Bylaws and the Policies of the Association. The Board of Directors must enforce compliance with regard to conduct of elections. 

1.  Grounds for Challenge

The grounds for the challenge include, but are not limited to, the following:

• Computer program errors and concerns;

• Failure to apply written guidelines and procedures to candidates in an equitable fashion;

• Unequal opportunity for voting members to be aware of challengers to incumbents;

• Failure to create or observe a formal or informal process that results in equity and diversity among the elected members;

• Lack of cultural competency in addressing concerns raised about racial equity and safety

1. Computer program errors and concerns:  

   1. The proprietary software used was previously demonstrated to have significant errors which impacted earlier elections, which resulted in a challenge of the recent elections for Better Schools Kentucky political action committee (See Exhibit A).

   2. There is a concern that similar or identical errors adversely impacted accuracy of the most recent election, such as retirees were initially counted in the totals of current teachers in buildings provided to Professional Representatives (PRs), the union liaisons in the building.  

   3. There are unaddressed concerns regarding inconsistencies between BSK election and General Election vote collection and tabulation methodology, such as reporting of vote totals, blanks, duplicates, and write-ins. (Exhibit B)

   4. Failure to provide historical voting data when asked by members; (See Exhibit C)

   5. No evidence of repair of those issues and a satisfactory audit showing that the issue was not capable of repetition was obtained by JCTA or provided to Complainants.  

   6. These errors and others inherent within the system rendered the results of the election inaccurate or unprovable.

2. Failure to apply written guidelines and procedures to candidates in an equitable fashion. This includes, but is not limited to: 

   1. Pattern of arbitrary decision-making, such as determining who may be an “observer” which was not based on written guidelines; (See Exhibit D) 

   2. No written process on how challengers are to reach out to voters (see below); challengers were reprimanded or discouraged when using email although no written prohibitions appear in Appendix A of the JCTA Governance Documents. There was a chilling implication when challenger candidates attempted to contact voters, directly or indirectly.

   3. Failing to follow written guidelines in election procedures, such as not posting election results when asked.

3. Unequal opportunity for voting members to be aware of challengers to incumbents, including but not limited to:

   1. Extremely limited, rigid and vague processes for challengers to reach out to potential voters to introduce themselves, discuss goals and mission, or become known to voting members; (See Exhibit E)

   2. Advocacy or publicity of incumbent members, allowing them to be very visible to the members without providing equal “air time” and opportunity to challengers;

      1. ACTION newsletter from January 20, 2021, was used in an unfair manner: Incumbent President’s picture on front page; candidate bios buried on pages (four) at the very back. Incumbent president using member resources to heighten campaign profile. Why did other candidates not get photos on the front page of ACTION? (See Exhibit F)

      2. Incumbents Brent McKim and Tammy Berlin attended building UniServ meetings while challengers were not provided the same opportunity.

      3. Incumbent Vice President Tammy Berlin sent legislative updates and action emails to members while challengers were not afforded the same opportunity. 

      4. Incumbents hosted Zoom calls and legislative updates with legislators like Morgan McGarvey, giving an impression of implied endorsement from these respected legislators.

      5. Incumbents cross-endorsed each other, giving the appearance they were running as a slate (See Exhibit G)

   3. Defamatory or negative statements by JCTA, its agents or employees, regarding challengers or supporters of challengers. 

      1. Incumbents and their supporters implied that candidates who accept support or endorsements from outside groups are doing something wrong

      2. Incumbents and their supporters implied that challengers running as a “slate” was wrong

      3. Incumbents and their supporters posted frequent criticisms and defamatory statements about one staunch supporter, calling her a “union buster,” anti-union, accusing her of “stalking and harassing” one of the incumbents “for years,” being disruptive at meetings, spreading disinformation and lies, being anti-queer, anti-semitic, making burdensome open records requests and being disgruntled about the district’s responses, offering to forge the union “bug” on printed materials, seeking employment opportunities, and more. These posts attempted to discredit her as an “outsider” who had no business advocating for union members and discouraged anyone from associating with her, calling those who do “scabs,” and asserted how Black leaders of an historical anti-racist alliance should operate their organization (See Exhibit H and Exhibit I)

4. Failure to create or observe a formal or informal process that results in equity and diversity among the elected members.

   1. Better Schools Kentucky political action committee is made up of 13 members. All but two are nominated by the President. The remaining two members are elected by the membership, one per year. As of November 2020, according to the latest “BSK Report,” only three of the 13 members listed on the BSK Report, as far as we can tell, were non-white. This representation of 77% white and 23% non-white, is far from representative of the demographics of the district, which is approximately 50% non-white. Both the chair and vice chair are white.

   2. The incumbent candidates running on the “slate” for the current Board are mostly white. The three challenged executive positions were all held by white individuals, while four “downballot” candidates represented the only non-white individuals being challenged. All 11 of the challengers, on the other hand, share a commitment to addressing racial injustices in JCPS. The challengers’ “slate” included two non-white candidates running for executive offices and five non-white candidates seeking positions further down the ballot, reflecting a total of seven non-white challengers, 11 total, desiring a more diverse, anti-racist representation on the JCTA Board. (See Exhibit J)

5. Lack of cultural competency in addressing concerns raised about racial equity and safety.

   1. Efforts to raise concerns have been met with responses commonly seen in communities that lack cultural competency training and awareness, such as denial, deflection, projection, and discrediting those raising the concerns.

CONCLUSION

For the foregoing reasons, the complainants request the following relief:

1. That the results for the election be set aside, as it was not conducted in a fair and equitable manner intended by JCTA Guidance documents, bylaws and policies;

2. That a new election be conducted in accordance with JCTA requirements in a manner that is transparent and equitable for all candidates; 

3. That if the election is conducted electronically, the means to validate and confirm tabulations is forthright and transparent and verified by a neutral third party; 

4. That tabulation results (including blanks, duplicates, write-ins and errors) of all elections (going back at least six years) be published within 24 hours of completion of elections, as well as counts by school, be posted on the JCTA Members Website;  

5. That JCTA create guidelines and standards to not only identify racial disparities in board makeup, but work to immediately rectify these disparities so that those making decisions about the safety and wellbeing of teachers, staff and students closely match the demographics of the district population, and are representative of the values and concerns of the community it serves — especially as agreements around safely returning to school and protecting teachers’ benefits and compensation are being made; and

6. That ALL governance documents that dictate how elections shall be conducted be accessible to all members at all times, via JCTA’s Member website.

Respectfully submitted,

/s/ Anna Stewart Whites           
P.O. Box 4023
Frankfort KY 40601
(502) 352-2373 (office)

EXHIBITS