The Counsel used quite forceful language to force Salafia into a choice, recommending that she not be allowed to serve in EITHER office until she relinquishes one of them.
Interestingly, the Counsel indicated that the next highest vote getter would fill the vacant seat. This was NOT the procedure two years ago, when Jeremy Clark won election to both a regular and an alternate seat on the Planning and Zoning Commission. When Clark gave up his alternate seat, the Democrats appointed Phil Pessina, who was not even on the ballot for any Planning and Zoning office.
From the Counsel opinion:
- May an elected member of the Common Council concurrently serve as an elected member of the board of Education?
NO. The duties and requirements of the Common Council and the Board of Education, as imposed by state law, Charter, and our ordinances, are such that serving on both would be prohibited by the common law doctrine of incompatibility.
- If an individual is elected to two incompatible offices during the same election, is such individual required to decline election to one of the two elected positions?
YES. Connecticut General Statutes 9-322b requires that where a candidate is prohibited by state law or Charter from holding more than one elected office to which he or she is elected during the same election, such candidate is required to notify the Registrars of Voters and the City and Town Clerk of the office to which the candidate declines election. Such opening is then filled by the candidate who received the next highest number of votes in the election.
Conclusion (also from Counsel opinion):
As explored in more detail above, serving concurrent terms on the Council and the BOE would require a Council Member to serve two roles that would necessarily be antagonistic to the other. As a result, there would be no undivided loyalty to either office. In such a circumstance, the common law doctrine of incompatibility prohibits an individual from serving concurrent terms on both the Council and the BOE. Furthermore, because Ms. Salafia was elected to two incompatible offices during the same election, state law allows Ms. Salafia declines should then be filled without delay pursuant to the provisions of C.G.S. 9-322b.
This Office recommends that Ms. Salafia make her decision before November 10, 2015 at 12 o'clock noon, as until one position is chosen, Ms. Salafia's term of office cannot commence. Additionally, this Office recommends in the strongest possible terms that the individual qualified to administer oaths who will be overseeing the swearing in on Tuesday, November 10, 2015, not swear Ms. Salafia in to either position until she chooses one, and that the City and Town Clerk also be guided by this opinion.