WESTFIELD – The City Council voted Thursday to send the issue of succession to the Ad hoc Charter and Rules committee for review and possible amendment.
The motion to review City Charter Section 25, Subpart A, was made by Ward 4 Councilor Mary O’Connell following raucous debate on a motion to fill the vacant Ward 2 seat with the citizen who received one write-in ballot.
That one vote, in the opinion of the Law Department, qualified Brian Winters of 34 Cross Street for election by the council to complete the term in office formerly held by James E. Brown Jr., who resigned his ward 2 seat on Sept. 1 due to a professional conflict.
The Law Department opinion ruled that Winters qualified as a defeated candidate, the term used in the City Charter, as amended in 1963, to define the succession process is a City Councilor resigns or is incapable of completing his or her term in office.
The City Council was divided on the appointment of Winters, with seven members (Brent B. Bean II, John J. Beltrandi, Christopher Crean, Kevin Harraghy, Christopher Keefe, Richard E. Onofrey Jr., and Kevin Sullivan), who comprised a majority, voting to abstain because they are named in a superior court law suit to which Winters is a party.
At-large Councilor Agma Sweeney also abstained, but on the grounds that her reading of the Charter and law, automatically qualify Winters to be seated on the council without a vote of the council members.
At-large Councilor David A. Flaherty left the Council Chamber to protest the action of the abstaining councilors.
Only three council members actually cast up or down votes, with O’Connell and Ward 3 Councilor Ann Callahan voting “yes” and At-large Councilor James R. Adams casting the lone “no” vote.
The council then voted 8-4 to send the issue to Mayor Daniel M. Knapik to make an appointment.
O’Connell said she sponsored the motion based upon debate of the succession process during the council’s last three sessions.
The Charter states:
“If at any time a vacancy occurs in the city council from any cause, the city clerk shall forthwith notify the city council thereof; and within fifteen days after such notification, the remaining city councillors shall choose, as city councillor for the unexpired term, whichever of the defeated candidates for the office of city councillor at the regular municipal election at which city councillors were elected for the term and office in which the vacancy occurs, who is eligible and willing to serve, received the highest number of votes at such election,
“… or, if there is no such defeated candidate eligible and willing to serve, in the case of a vacancy in the office of councillor-at-large, any registered voter of the city duly qualified to vote for the office of city councillor-at-large, and in the case of a vacancy in the office of a ward councillor, any registered voter of the city duly qualified to vote for the office of city councillor from the ward in which the vacancy occurs.
“… If at a regular municipal election there is a failure to elect a city councillor, or if a person elected city councillor at such election dies or resigns before taking office, the city clerk shall, as soon as conveniently may be after the remaining city councillors-elect take office, notify the city council of such failure to elect, death or resignation; and within fifteen days after such notification, the members thereof shall choose, as city councillor for the unexpired term, whichever of the defeated candidates for the office of city councillor at such election, who are eligible and willing to serve, received the highest number of votes at such election for the office in which the vacancy occurs, or, if there is no such defeated candidate eligible and willing to serve, in the case of a vacancy in the office of councillor-at-large, any registered voter of the city duly qualified to vote for the office of city councillor-at-large, and in the case of a vacancy in the office of ward councillor, any registered voter of the city qualified to vote for the office of city councillor from the ward in which the vacancy occurs.
“…If in any of the aforesaid events a choice is not made as hereinbefore provided within fifteen days after notification of the city council by the city clerk, the choice shall be made by the mayor, or, if there is no mayor, by the city councillor senior in length of service, or, if two or more councillors have the same length of service, by the city councillor senior both in age and length of service.
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.
Many of the councilors contested the Law Department opinion that a person who receives one write-in vote meets the standard of a candidate. Candidates listed on the ballot are required to submit nomination papers with the valid signatures of 50 registered voters, city-wide for At-large candidates, or ward residents for ward candidates.
“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 at the Sept. 20 council session. “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,” Bean said.
“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 at that earlier meeting. “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.”
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.
O’Connell said that all council members are welcome to participate in the Ad hoc Charters and Rules Committee, on which she serves as the chairwoman, to debate of the existing language and any potential modification of that language.
To watch Thursday’s city council meeting, click here.
