Recount affirmed Joey Prestley won Green Bay City Council race. So why wasn't he sworn in Tuesday?

GREEN BAY - An April 12 recount confirmed Joey Prestley won the Green Bay City Council District 6 election, but Prestley on Tuesday did not get to take the oath of office with the 11 other council members.

The Green Bay City Council on Tuesday held its organizational meeting, which includes the elected members taking the oath of office, selection of a council president and vice president, and appointments to committees.

The seat for the District 6 council member will stay empty at least until Friday, possibly longer.

Prestley was not sworn in because his opponent, incumbent Steven Campbell, still has several days to appeal the result of Friday's recount in Brown County Circuit Court. According to the city, the April 12 recount affirmed Prestley garnered 355 votes to win the race and adjusted Campbell's total down by one vote to 339.

How did we get here?

On election day, which was April 2, Prestley defeated Campbell 355-340 votes, a result that was certified the next week.

Campbell on April 11 requested and paid for a recount of the District 6 results and cited his belief a mistake and fraud had been committed. The recount was conducted on April 12 and into the early hours of April 13.

Campbell also on the day of the recount filed an emergency motion in Brown County Circuit Court seeking a judge's order directing City Clerk Celestine Jeffreys to conduct a hand recount of the ballots. Judge Beau Liegeois on Monday assigned the case to Judge Donald Zuidmulder but did not act on Campbell's request for an order, according to court records.

While the recount is complete, Wisconsin Statute 9.01(6) gives Campbell five business days after the end of the recount to appeal the recount results. In this case, Campbell has until 5 p.m. Friday to file an appeal in circuit court.

Campbell could have notified the clerk's office by Tuesday he was waiving his right to appeal, but he did not.

Why wasn't Joey Prestley sworn in as a Green Bay City Council member?

The clerk needs to file a certificate of election in order for Prestley to take his seat on the council. Until Jeffreys can file such a certificate, Prestley cannot be sworn in, the District 6 seat remains empty, and the City Council will operate with 11 members.

Per Wisconsin Statute 7.53(4), Jeffreys cannot file the certificate until one of three things happens:

• Campbell in writing waives his right to appeal the recount results.

• The Friday deadline passes without an appeal.

• Campbell files an appeal and the court case is resolved. If Campbell files an appeal, the District 6 seat will remain empty until a judge resolves the court case and any subsequent appeals.

State statutes call for a judge to hear any recount appeals as expeditiously as possible, but no specific timeframe is included. Should he appeal, Campbell would file the appeal directly against Prestley, not the city or staff.

A member of the Green Bay City Attorney's Office declined to comment saying the city does not comment on pending litigation it may be involved in.

'We'll welcome you when the time is right'

Prestley attended Tuesday's City Council meeting and watched the proceedings from the public gallery. Afterward Prestley said he was "mildly disappointed" he could not take the oath of office with the rest of the council, but continues to look forward to being sworn in.

"I respect the laws and processes we have in place," Prestley said of the recount rules. "It will happen soon enough."

Green Bay Mayor Eric Genrich and newly elected Council President Brian Johnson both acknowledged Prestley's absence from the District 6 council seat but his presence at Tuesday's meeting.

Genrich said he expects Prestley will be able to take the oath of office soon but said the recount process "hasn't totally been put to bed yet." Johnson noted there was someone missing from the board.

"We’ll welcome you when that time is right and the dust settles," Johnson said.

Why did Steve Campbell request an emergency order for a hand recount?

On Election Day, voters can drop off absentee ballots at the clerk's office until the polls close at 8 p.m.

Campbell in his emergency motion claims Jeffreys delivered a batch of absentee ballots to the city's central count at 7 p.m. and then at 7:50 p.m. brought another 38 absentee ballots from the clerk's office to central count.

The motion does not specify if Campbell believes those 38 ballots were all cast by District 6 voters, only that it is his belief "that 38 people did not bring in ballots between 7 and 7:50 pm" and that he believes "fraud had occurred."

What are the state rules regarding recounts?

Wisconsin Statute 5.90 and Statute 9.01 lay out recount rules, timing and procedures. The laws indicate they should be conducted with automated tabulating equipment and that canvassers who conduct the recount should check the ballots including rejected, defective or over-voted ballots.

A candidate can by the close of business the next business day after the recount filing deadline petition the circuit court for an order to count the ballots by hand. But they have to establish "clear and convincing evidence that due to an irregularity, defect, or mistake committed during the voting or canvassing" that the use of automated tabulating equipment would produce an incorrect result or that a hand recount would produce a more correct result that would change the outcome.

In this case, Campbell said a manual recount would "give a more accurate result."

Contact Jeff Bollier at (920) 431-8387 or jbollier@gannett.com. Follow him on Twitter at @JeffBollier.

This article originally appeared on Green Bay Press-Gazette: Recount rules keep Green Bay City Council member-elect from taking oath