Attorney for Ward 2 residents seeks court order

WESTFIELD – A Northampton attorney has filed a motion seeking a Hampden Superior Court to order the city to appoint Brian Winters of 34 Cross Street to the vacant Ward 2 City Council seat.
The city’s Law Department had filed documents with Hampden Superior Court on Thursday, Feb. 7, seeking a declaratory judgment and clarification from the court of the appointment process to complete the term of former Ward 2 City Councilor James E. Brown Jr., who resigned last September.
Attorney Mark A. Tanner of Bacon & Wilson, said this morning that he filed a response yesterday to the city’s motion for clarification of the appointment process, seeking the court to either issue a summary injunction, which would prevent the city from appointing another person to that seat until the issue is resolved in the courts, or seeking the court to order the city to appoint his client, Winters, to the City Council.
“We’re asking a judge to make a decision that will be made sooner or later,” Tanner said. “We’d rather that it be sooner.”
Tanner also filed documents to add several Cross Street residents to the case as interveners, which gives them status as parties involved in the case. The Cross Street residents are seeking the court to order Mayor Knapik and the City Council to appoint Brian Winters to the Ward 2 seat and find that Winters’ rights were violated by the City Council and Mayor Daniel M. Knapik.
Under City Charter, the candidate with the next highest vote count is appointed to fill a vacancy on the City Council.
Neither the City Charter nor state law clearly defines the term “candidate”. The City Charter calls for seating “the defeated candidate with the next highest vote” count.
Tanner said that the facts in the case are not in dispute and that it is the role of the court to clarify any question or ambiguity created by language of the City Charter’s appointment process.
Under City Charter, the City Council has 15 days, if a City Council vacancy occurs, to name a successor. Brown’s Sept. 1, 2012 resignation letter was officially accepted at the council’s Sept. 21 session, starting the 15-day clock. The appointment was placed on the council’s agenda for the Oct. 4 meeting.
However, the council at its Oct. 4 meeting failed to take a vote, with nine members exercising their right to abstain because of a conflict of interest. Eight councilors cited a law suit, to which Winters is a party and in which the councilors are individually named, as their reason, while one councilor abstained because of the belief that Winters is automatically appointed without the need for action by the council.
Tanner said that the Ward 2 residents have been without representation on the City Council for seven months and that the city failed to take action until the Cross Street residents were preparing to file court action “to ensure their representation in the city government.”
Tanner argues that “Mr. Winters has a substantial likelihood of success on the merits” of the facts as presented in the Feb. 13 documents in response to the city’s request for a summary judgment. The city is asking the court to define an interpretation of the term in the Charter which says the ‘mayor should make a choice’ and to determine the time frame for making that appointment. The Charter requires the City Council to act within 15 days to fill the vacancy, but does not address the time-frame if the appointment defaults to the mayor.

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