JOHNSTOWN, Colo. — Mayor Michael Duncan has filed a formal protest challenging the sufficiency of the petition seeking his recall, raising questions about how some signatures were collected and whether information presented to prospective signers complied with Colorado recall requirements.
Town Clerk Meghan Martinez confirmed Friday to the Johnstown Republic that the protest was filed Monday, Sept. 28. Martinez said no hearing has been scheduled and that she has no update regarding cured signatures. The deadline for the recall committee to address deficiencies in the petition remains Oct. 6.
Recall organizers submitted 559 signatures Sept. 15. In the Clerk’s initial review, 479 were allowed and 80 were disallowed, leaving organizers 11 short of the 490 required, as the Johnstown Republic previously reported. The Clerk’s determination provided the committee until 5 p.m. Oct. 6 to address the petition’s deficiencies.
Duncan’s protest asks the hearing officer to begin with the 479 signatures accepted in the Clerk’s initial determination and invalidate additional petition sections or signatures if his challenges are sustained. That means the protest could affect the petition’s ultimate signature count even if organizers address enough of the initial deficiencies to reach the 490-signature threshold.
The Johnstown Republic has reviewed a copy of the protest and exhibits provided directly by Duncan. The Republic has also submitted a Colorado Open Records Act request to the Town for the official filed version but had not received those records as of publication.
Protest document provided by Mayor Michael Duncan
The document below was provided directly to the Johnstown Republic by Mayor Michael Duncan. The Republic is awaiting the Town of Johnstown’s official filed copy through a Colorado Open Records Act request and will compare the documents when those records are received.
Duncan: ‘The count, and the clock’
Asked why he filed the protest while the recall committee still has time to address the signature deficiency, Duncan told the Johnstown Republic his decision came down to “the count, and the clock.”
Duncan said he filed before the Oct. 6 deadline because Colorado’s municipal recall law allows a registered municipal elector to file a written protest under oath within 15 days after a recall petition is filed. Duncan said waiting for the committee’s amendment period to conclude could have jeopardized his ability to challenge the original submission.
“The cure is a second chance at signatures. It is not a wipe of the first stack,” Duncan said. “I filed so the original submission stays in front of a hearing officer.”
Duncan’s protest does not ask the hearing officer to determine whether the political allegations underlying the recall are true. His filing describes the challenge as one concerning the legal and numerical sufficiency of the petition and acknowledges that the political grounds for recall are for electors to judge.
“I am not asking the officer to retry the 200-word statement,” Duncan told the Johnstown Republic. “Those grounds belong to the electors.”
Duncan’s filing also states that he bears the burden of proving his challenges and cites Colorado case law directing that recall provisions be liberally construed in favor of allowing electors to exercise the recall power.
Circulator presence is central to protest
Duncan identified whether petition signatures were collected in the presence of the circulator as the most significant issue in his challenge.
Colorado law requires each petition section to contain a circulator affidavit. Among other requirements, the circulator must attest that no misrepresentation was made concerning the purpose of the petition and that each signature was affixed in the circulator’s presence.
“Presence,” Duncan said when asked which issue he considers most significant. “An affidavit that every name on those sections was signed in her presence has to be reconciled with that record.”
Duncan’s exhibits include two photographs of recall committee member Pauline Migliore at a petition table. One, identified as taken Aug. 28, shows Migliore seated behind the table with a phone. Another, dated Sept. 1, shows her reading behind signs stating “Recall Mayor Duncan” and “NO AI DATA CENTER.”
Duncan argues the photographs and advertised petition-signing hours warrant examination of petition sections associated with those collection periods to determine whether the circulator identified in each affidavit was present when each signature was obtained.
The photographs themselves do not establish that a signature was collected outside a circulator’s presence. Whether those petition sections complied with statutory requirements is among the issues Duncan is asking to have determined through the protest process.
Protest challenges separate fact sheet
A second part of Duncan’s challenge concerns information allegedly provided to prospective signers outside the petition approved by the Town Clerk.
An exhibit included with the copy provided by Duncan reproduces an Aug. 26 Facebook post containing a separate fact sheet about the recall. The post also offered to bring the petition to a resident’s home for a signature.
Duncan argues portions of the fact sheet mischaracterized Johnstown’s form of government and the mayor’s authority. He specifically disputes language describing the mayor’s position as ceremonial while omitting the Charter’s reference to the mayor’s political role.
Johnstown’s Home Rule Charter states that the mayor is a member of Town Council with the same voting powers as any councilmember. It also states that the mayor presides over council meetings and is recognized as head of Town government for “ceremonial and political purposes.”
Duncan also argues that the fact sheet introduced information about YMCA equipment that did not appear in the recall statement approved by the Town Clerk.
Those arguments do not by themselves establish that petition signatures are invalid. Duncan is asking the hearing officer to determine whether the circumstances surrounding the materials and signature collection affected compliance with the statutory requirements governing the petition.
YMCA signing periods among those questioned
The protest also seeks scrutiny of petition sections associated with advertised signing periods at the Johnstown Community YMCA and along Rolling Hills Ranch Drive.
One exhibit shows a Sept. 9 signing opportunity advertised at the YMCA from 5 to 9 a.m. Another lists additional signing opportunities at “The Y” and along Rolling Hills Ranch Drive.
Duncan connects those signing periods with his broader allegations concerning circulator presence and the separate fact sheet. The protest does not establish that collecting signatures at the YMCA or another particular location was itself prohibited.
Duncan also raises questions about connections between people associated with the recall effort and the YMCA, which has been involved in a separate contract dispute with the Town. Those assertions are part of Duncan’s argument and have not been adjudicated.
Duncan seeks records and testimony
Duncan is asking for production of petition sections, circulator affidavits and related records so they can be examined as part of the protest proceeding.
He also requests testimony from recall committee members and several other people he identifies as circulators, solicitors or individuals who may have information about how signatures were collected.
The protest also requests limited testimony from Councilmember Dianne Morris after an exhibit showed her listed as “previewing” a Facebook group associated with the recall effort.
Duncan expressly states that he is not alleging Morris circulated the petition based on that evidence. Instead, he seeks information about what she may have seen or received through the group.
Johnstown Republic investigation included as exhibit
The copy of Duncan’s protest provided to the Johnstown Republic also includes the Republic’s Sept. 8 investigation, Records Complicate Key Claims Behind Recall Effort Against Johnstown Mayor Michael Duncan, as an exhibit.
The article examined Town records related to several claims underlying the recall effort. In Duncan’s copy of the protest, the article appears as Exhibit Y.
Editor’s note: The Johnstown Republic had no involvement in preparing Duncan’s protest. The Sept. 8 article was independently reported and published before Duncan filed the protest.
What happens next
Martinez told the Johnstown Republic Friday that no hearing has been scheduled.
Under Colorado’s municipal recall law, a written protest may challenge the petition, circulator affidavits or whether a circulator complied with statutory requirements. If a protest is filed, the law provides for a hearing at which testimony is taken under oath and the hearing officer may issue subpoenas and compel witnesses to appear.
The Johnstown Town Council previously appointed attorney Ian McCargar as an administrative hearing officer for election-related matters. His appointment was not limited to the Duncan recall, and the Town has not confirmed that McCargar has been assigned to this protest.
Duncan said he intends to appear at the hearing and has requested testimony from petition organizers and others identified in his protest. He also told the Johnstown Republic that if the petition is ultimately found sufficient, he intends to seek review in district court. Colorado law provides for district-court review of a hearing officer’s sufficiency determination at the request of the officer sought to be recalled, the officer’s representative or a majority of the recall committee.
Meanwhile, the recall committee’s Oct. 6 deadline remains in place. Martinez said Friday that she had no update regarding cured signatures, meaning the Clerk’s Sept. 21 determination of 479 accepted signatures against 490 required remains the latest official count available.
The Johnstown Republic contacted Migliore for comment. Migliore requested a copy of the protest and allegations. Because the Republic is still awaiting the official filing from the Town, it provided Migliore with a summary of the principal allegations and an opportunity to respond.
No substantive response from Migliore or the recall committee had been received as of publication.
The Republic will review the official protest and exhibits when the Town fulfills its records request and will update this report if the filed version differs materially from the copy provided by Duncan or as additional responses and hearing information become available.
