WESTFIELD – The special meeting of the City Council petitioned by three councilors failed to occur last night when only five City Council members responded to City Clerk Karen Fanion’s roll call. Ward 4 Councilor Mary O’Connell had submitted the special meeting petition, also sponsored by At-large Councilors David A. Flaherty and Agma Sweeney. At-large Councilors Brian Sullivan and Kevin Harraghy joined the three sponsors in the 7:03 p.m. roll call. The five adjourned at 7:05 p.m.
The sponsors had requested that Susan Phillips of the Law Department also attend the session, stating that councilors still had questions about the process of filling the Ward 2 City Council seat vacated by James E. Brown Jr., on Sept. 1. Phillips also did not attend the proposed special session.
Those question and the options available to the council to fill the seat will be the first order of business tonight when the regular council session convenes at 7 p.m. and the sharply divided legislative body has to take some action, maybe.
The City Charter sets a time line of 15 days for the council to seat a new member if the elected member resigns or can not longer serve. The charter also requires the council to seat the defeated candidate with the next highest vote tally. If the council fails to agree on a candidate for election to the post, the matter is deferred to the seated mayor to make an appointment.
The Law Department has issued an opinion that the defeated candidate in this instance is a person who received one write-in vote. Brian Winters has indicated that he is willing to serve the remaining time of Brown’s elected term in office.
The issue that divides the councilors is that Winters never “stood or offered himself” for election to the ward post, never submitted nominations papers which require 50 valid signatures of registered voters in a specific ward for a ward councilor or the city in the case of an at-large councilor.
Those councilors who do not accept the opinion of the Law Department find it highly unpalatable to seat Winters, but because of the Law Department opinions may be stripped of municipal indemnification and may expose themselves to litigation as individuals if they vote no in this issue.
Ward 5 Councilor Richard E. Onofrey raised that concern at the last council meeting on Sept. 20, 2012, stating that Winters, a Cross Street resident has shown a propensity for suing the city and elected officials, including all of the seated councilors, because of his opposition to the proposed Ashley Street elementary school.
The council voted 7-5 at it Sept. 20 session to proceed with the vote tonight following an extremely focused debate on the issue of whether Winters is a viable successor as defined in the section 25 City Charter, as amended in 1963,and in state law.
“I think that we have only one way to go, like it or not,” Onofrey said at the Sept. 20 session. “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 this appointment and the judge’s decision could be overturned, that we risk losing millions of dollars,” Onofrey said.
Tonight that debate will spark up again as City Clerk Karen Fanion submits Winters as the defeated Ward 2 candidate in the Nov. 8, 2011 municipal election to the City Council. What final decision will come out of the sharply divided council remains unclear, although City Council President Christopher Keefe stated that Fanion’s submission is not an automatic appointment for Winters.
“At some point we have to act,” Keefe said. “This issue was referred to the City Council, not the City Clerk (to make the appointment). It’s not an automatic function, that’s why we have to vote on it,” Keefe said. Legislative affairs are matters for legislative bodies.”
