Westfield At-Large City Councilor Brent B. Bean II, left, and Westfield City Council President Christopher Keefe, right, listen to debate on the process to fill the Ward 2 city council seat, having accepted the resignation of Ward 2 Councilor James Brown during last night’s meeting at City Hall. (Photo by chief photographer Frederick Gore)
WESTFIELD – The City Council is set to vote at its Oct. 4, 2012 session to fill the vacant Ward 2 seat with a write-in candidate after rejecting other options last night.
The council voted 7-5 to proceed with the Oct. 4 vote following an extremely focused debate on the issue of whether a Ward 2 resident, Brian Winters,who received just one write-in vote, is a viable successor as defined in the section 25 city charter, as amended in 1963,and in state law.
Prior to the discussion on filling the Ward 2 seat, the City Council voted to accept the resignation of James E. Brown Jr., who was elected to the Ward 2 post, which he held for nearly three years. Brown submitted his resignation, effective Sept. 1, due to a conflict with supervisory position at the Department of Homeland Security, stating that his duties prevented him from serving the constituents of Ward 2 in the way they deserved.
Neither the City Charter nor state law clearly defines the term candidate, although the City Charter calls for seating “the defeated candidate with the next highest vote” count. In the absence of a clear definition of a candidate, the council asked for an opinion from the Law Department, which basically stated that the council was legally obligated to seat the resident with one write-in vote. Voting contrary to that Law Department’s legal opinion could strip the councilors of their indemnification as public officials and expose then to litigation as individual citizens.
Council President Christopher Keefe framed the debate by offering three options available to the council as codified in the City Charter. Keefe also said that because charters require the approval of the General Court, they have the same legal weight as state law.
The three option Keefe defined are:
1) seat the write-in candidate;
2) reject the write-in candidate and proceed with the process of electing some other Ward 2 resident to the Ward 2 seat;
3) fail to appoint any Ward 2 resident to the seat within 15 days and defer the appointment to Mayor Daniel M. Knapik, who, coincidentally, held that seat during his tenure on the council.
BRIAN WINTERS
The timing of the Oct. 4 vote is critical because it will occur on day 14 of the 15-day time limit set by charter.
Ward 4 Council Mary O’Connell argued that the council has only one option, to appoint the write-in candidate, who by having one vote became the next highest vote-getter in the 2011 election.
“I don’t see three options if we are to accept the City Solicitor’s opinion.” O’Connell said. “In my consultation with the Secretary of State’s office, I was told that we, as a body, must accept the opinion of our solicitor. The opinion is clear as to what we are mandated to do. This is the law.”
At-large Councilor Brent B. Bean II, argued that a person with one write-in vote is not a viable candidate.
“I don’t think one write-in vote constitutes a candidate for election,” Bean said, adding that when he filed his nomination papers to get on the ballot, he had to submit documents with the endorsement of 50 registered voters.
“I’d like to see us move forward and select someone from Ward 2 without getting bogged down in legal opinion,” Bean said. “A lot of these types of decisions are put before us to make a decision and we keep deferring to attorneys. One write-in vote does not meet the standard of a candidate, to have one write-in vote classifying someone as a candidate is absurd.”
“I hope common sense rules this body, not an opinion from the Law Department,” he said.
At-large Councilor David A. Flaherty countered that the function of the Law Department is to provide guidance to the city and council.
“The Law Department is there to clarify these issues,” he said. “I’m not happy with the result, but good for him, he went to the polls and voted. They will sue us. That’s just the way it is. I think it’s wrong to throw out the election result. I don’t see how we have any choice.”
At-large Councilor Brian Sullivan disputed that assertion.
“There were no defeated candidates, he got one vote,” Sullivan said. “If he had gone to other people, asking for their write-in vote, got three or four or five votes, that would be a candidate.”
“Dealing with lawyers, my experience is that you can get any answer you want based on how you ask the question,” Sullivan said. “There is no candidate. Do this (election) like we did for Ward 3.”
Sullivan said the City Charter does define a candidate as “one who seeks or offers himself or is put forward by others for election.”
“One write-in vote does not meet that standard,” he said.
Ward 5 Councilor Richard E. Onofrey Jr. said the opinion of the Law Department is “very clear. Writing your name down (on a ballot) does make you a candidate.”
“Our City Charter does not address this, but the charters of other cities do and say you have to have the same number of write-in votes as the number for nomination to the ballot to be a candidate. That is something we’ll have to address in the future,” Onofrey said.
“I think that we have only one way to go, like it or not,” he said. “We’re looking at a person who has sued each and every member of this council, who has a history of suing us if we don’t do what he wants.”
“My concern is that if he does sue us and a judge overturns our decision to appoint someone else, every vote we take between that appointment and the judge’s decision could be overturned, that we risk losing millions of dollars.”
The council voted 7-5 on a motion to consider only option one as defined by Keefe, which means if it fails to pass on Oct. 4, the council will not have time to take any other action and the appointment will defer to the executive branch.
Voting in support of that motion were Councilors John J. Beltrandi, Ann Callahan, Christopher Crean, Flaherty, O’Connell, Onofrey and Agma Sweeney. Voting against were Councilors James R. Adams, Bean, Kevin W. Harraghy, Keefe and Sullivan.
