Friday, November 6, 2015

Salafia Cannot Double Serve: General Counsel

The City's Office of the General Counsel has provided a formal opinion that Linda Salafia cannot simultaneously serve on the Common Council and the Board of Education. Salafia was elected to both in Tuesday's election, and indicated that she intended to serve in both positions concurrently. This would have been a first in our city.

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:

  1. 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.
  2. 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?
     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. 


Anonymous said...

Why did Republicans even nominate her for 2 incompatible positions?

Anonymous said...

Attorney Smith needs to explain how in 2013 he was quoted by the Press as saying that he saw NO conflict for Carl Chisem to serve on pz & Council. Where is that legal opinion? Chisem only chose to resign from pz but was not going to be made to. Councilwoman Bartolotta votes on budgets for the police department included in the city budget where her husband is employed, BOE member Shiela Daniels is employed by the BOE and is on the BOE, Councilwoman Hope Kasper was a pension participant and sat on the pension board in her service as did others. There are many many other overlaps so what is this particular case any different?

Anonymous said...

Oh well, rules are rules and case law is case law

Anonymous said...

I'm persuaded by the claim that the offices are incompatible, and that accepting a new office while holding an incompatible office is, in legal contemplation, a resignation from the old office.

If Ms. Salafia is sworn into one office, the above logic suggests that in doing so she is declining the other office and should not be sworn into it.

An interesting question arises if the time for swearing in comes and Ms. Salafia says (like Jack Benny confronted by a robber who says, "Your money or your life!"), "I'm thinking it over."

Arguably, a declination to be sworn into either office could be a declination of both offices.

On the other hand, Huey Long was elected to the U.S. Senate while two years into a four-year term as Louisiana governor, and waited two years for his gubernatorial term to run out before he went to Washington. They swore him in and he took his Senate seat, so apparently in that case there was no "choose it now or lose it" pressure.

And look how swimmingly everything has gone since then.

David Sauer said...

Anon at 6:18 the article said the Smith had begun looking into the issue, but so far he didn't see an outright prohibition. Also, further down in the article Molly Salafia walked out of the meeting because she feared that any action taken with Chisem as a member would be invalid and that she was waiting for Smith's official decision.
Chisem resigned and there was no official ruling.

The City Attorney has now issued a ruling on the issue which states there is no outright prohibition, but it is barred by a commonlaw principal of incompatibility.

Smith never said that it would be permissible for Chisem to serve on both boards.

Middletown Eye (Ed McKeon) said...

Anonymous said...

To Anonymous November 6, 2015 at 6:18 PM....
Don't know specifics for Chisem, Bartolotta or Kasper, but Daniels isn't employed by the BOE.

Anonymous said...

BrianK said...

Anon 11/7/15 8:13pm. What are you talking about. Where in that 2 year old bio does it say Shelia works for the BOE???????

Anonymous said...

This brings up what I think is another good point. Why would someone, for instance, be able to serve as an executive, say Deputy Mayor, and also serve on the Town Counsel? Is that not incompatible as well? I would enjoy the opportunity to see a legal opinion on that matter.

Anonymous said...

Might it be similar to a congressman serving as speaker of the house and 2nd in line to the presidency?

Anonymous said...

Daniels is a grant writer for BOE employed by City, but works at BOE.