Town Attorney Says 'Bare Majority' Stipulation For BOE Race Excludes Two-Year Candidate

Town Attorney David Grogins has released his formal opinion on a relatively recent charter revision stirring up controversy a few days ahead of local elections. And two Democratic Board of Education candidates caught up in the issue also weighed in on the prospect of pursuing legal action if they do not each win seats under the “bare majority” rule currently in question.

(See NewtownBee.com for a link to the full text of the town attorney’s opinion.)

The issue was originally brought to light by Democratic Registrar of Voters LeReine Frampton, who served on the Charter Revision Commission recommending a 2008 change that states, in part: “At each town election the number of candidates of any one political party elected to serve on the Board of Education shall not exceed a bare majority of the number of candidates to be seated.”

Voters approved the change and it was subsequently codified in the charter.

Ms Frampton believes that according to that charter revision, both Democratic candidates for the school board November 5 must be awarded seats no matter where they stand in their vote tally against three Republican candidates running for open four-year terms.

Democratic selectman and attorney James Gaston, Sr, said there is a possibility of legal action if the town moves forward seating an unopposed Republican to fill a two-year term, along with three additional Republicans if they are the top vote getters for three open four-year terms on the school board.

“We feel the charter is clear; bare majority means a maximum of four Republicans can serve,” Mr Gaston said. “If two Democrats are not seated, it presents a legal question.”

In that scenario, Mr Gaston said the odd Democrat out and the Democratic Town Committee will have to consider whether to take action to prevent the fifth Republican from being seated.

“The second Democrat, by charter, has to be seated,” Mr Gaston said.

One of the candidates in the mix, Laura Main, told The Bee that she has entertained the idea of participating in legal action if she is denied a seat, and has rejected the idea.

Responding to an e-mail request for comment, Ms Main said, “I have considered it, given the recent discussion, and would not pursue it. I would hope to be elected by the voters.”

But having served as a Charter Revision Commissioner herself on a different panel, Michelle Embree Ku viewed the situation differently.

“It would be a disservice to the charter revision commissioners and to the voters who approved the charter revision in 2008 if the intent of the charter revision was not followed — that is, if more than a bare majority is newly seated after this election,” she said in her response. “I hope this election resolves without legal action. If not, I will follow the legal advice that the Democratic Town Committee receives.”


Anomaly Will Resolve

Town Attorney Grogins called the situation both complicated and an anomaly that will resolve in 2015 when the remaining three staggered seats come up for election. Until then, he said attorneys at the Connecticut Secretary of the State’s office agree that as many as five Republicans can serve on the school board.

Because he is running unopposed, Republican David Freedman will automatically win a two-year term filling a vacancy created by the midterm departure of Republican Cody McCubbin. Kathryn Hamilton is the appointed school board member filling that seat now, but she opted to run for an open four-year seat November 5 when Mr Freedman stepped up to run for the midterm vacancy.

That two-year term has its own place on the local ballot, separate from the candidates running for the remaining four-year posts.

Mr Grogins said the charter requires any candidate for the remaining two-year term to stand for office in the first local election following the appointment. In the town attorney’s opinion, however, that candidate’s status is protected on the board and is not inclusive to the bare majority stipulation in Section 2-30 of the Newtown Charter.

Ms Frampton believes this stipulates only four Republicans can hold seats on the board, and only two of the three running for open four-year terms November 5 can be seated, even if three Republicans are top vote getters.

That means incumbent Republican Laura Roche could be joined by Mr Freedman and just two of the three remaining candidates — Ms Hamilton, Debbie Leidlein, and Keith Alexander who are all incumbents.

But Mr Grogins insists that because Mr McCubbin was serving a four-year term, his unopposed replacement Mr Freedman can be joined by up to three more Republicans provided they are the top vote getters. The remaining seat would then go to the top Democratic vote getter, either Laura Main or Michelle Embree Ku.


Advised Against It

Mr Grogins said when the charter panel was formulating its recommendations back in 2008, he advised the commission that he “did not like the language” of the proposed revision referring to a “bare majority” from any one party on the school board. But the commission kept the language, which was ratified by voters and became effective.

“I talked to the Secretary of the State’s Office attorneys and they agree,” Mr Grogins said. “Potentially, there are two classes of [Republican school board] candidates — three who can win four-year terms and one who will serve the final two years of a four-year term.

“Mr Freedman will be filling one of three seats elected in 2011,” Mr Grogins said, adding that the restriction of four from any one party does not apply in this election cycle.

“This cycle is an anomaly,” the town attorney said, “and it’s possible that five Republicans could sit [on the school board] for the next two years.”

Mr Gaston said state statute offers towns some flexibility in defining minority rules for elected boards.

“The statute enables you to do certain things, including permitting a five-to-two party makeup on a seven-member board,” Mr Gaston said. “But our charter stipulates the bare majority is four to three [on the school board].”

A Newtown Bee report ahead of the charter referendum in 2008 listed a number of “simple language” interpretations of the commissioners recommendations by Ms Frampton, who stipulated the information was her own and did not represent legal or binding content.

Regarding the question referring to the bare majority, Ms Frampton wrote: “Currently there is a maximum of three members from any party on the six-member Board of Education. This amendment would increase the total number of members to seven, and allow up to four members from any one political party. This vacancy will be filled by the current Board of Education, and the appointee would serve until the November 2009 local election.”

(This story was updated 11/1/13 to include comments by the Democratic candidates for the school board.)


Another Grogins Distorted opinion

Some years ago Mr. Grogins also ruled that the word "shall" in our charter actually means "May". He has consistently twisted the Charter. Mr. Grogins is also the attorney who opinioned that the illegal $3.5 million dollar parking lot which the taxpayers didn’t vote on was legal in his opinion. As the taxpayers know the only way to challenge him if the town acts on his shaky opinions is to sue. It’s time we had an attorney who protected the voters, not his politically appointed job which pays his law firm over $350,000 per year.

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