2013 Board of Education race results

DEMOCRATIC TOWN COMMITTEE PRESS STATEMENT

First, the Democratic Town Committee of Newtown (DTC) would like to congratulate all the candidates of both Parties who ran for office this election. Whether elected or not, you were winners. You honored yourselves, your family, your Party and your town by doing so. It is no small feat to run for office. Likewise, it is not easy to serve as an elected official. You assume important responsibilities, are subject to both constructive and unconstructive criticism, and are required to dedicate much time away from your family, employment and leisure activities. Undoubtedly, your dedication and commitment confirm the very bedrock of democracy by which our country exists. Thank you, one and all.

Second, there has been much discussion about the Board of Education race and the maximum number of seats one Party is entitled to hold on the seven-member Board.  Members of the DTC have scrutinized this issue closely. We have consulted legal counsel, and submitted the issue to the highest level of the Democratic Party State Central. After thorough review that includes legal analysis, review of the Charter question, State statutes, the Town Charter, minutes of the Charter Review Commission, and inquiry of 2007-2008 Charter Review Commission members themselves we have concluded that a legal challenge to restore a balance of 4 Republican and 3 Democratic members would likely be unsuccessful. This does not mean we approve or condone the events that led up to this unfortunate outcome that has resulted in the move from an equally balanced 3-3 membership to the present makeup of a 5-2 imbalance. Instead it simply means that circumstances occurred that now need to be corrected through an immediate appointment by the Legislative Council of a new Charter Review Commission to restore the intended balance of no more than one Party holding more than 4 seats on the Board of Education.

Third, the DTC submits that the public has the right to know what transpired, how this unfortunate occurrence resulted, and the reason the DTC believes a legal challenge would be unsuccessful.

In 2007, the Town Charter provided that the Board of Education would consist of 6 members, no one party holding more than 3 seats. The obvious reason for the even balance was to attempt to remove politics from the important position of educating our children, and broadening the scope of ideas and representation. That year saw 3-3 votes that stalemated Board work on important issues. The Legislative Council responded to the issue by appointing a 6 person Charter Review Commission that included two Republicans, two Democrats and two independents/unaffiliated. The Charter Review Commission recommended expanding the Board of Education to 7 seats. The consensus was that no Party would have more than 4 members, or what has been referenced as a “bare majority.” The Charter question posed to the voters and passed read:

Question 7 – Shall the Charter be amended to change the maximum number of members of one political party who may serve on the Board of Education and change the total number of members on the Board of Education to seven (7) members? This modifies 2-30(c) and 2-70(a) [of the Town Charter].”

Unfortunately, unlike other Charter Questions there was no explanation or specification given on the ballots as to the “maximum number of members of one political party”. Instead, the Newtown Bee requested LeReine Frampton, a member of the Charter Review Committee and the Democratic Register of Voters to give an explanation as to each of the Eight Charter Questions. The article published in the Bee clearly and expressly stated the meaning to be no one Party could seat more than 4 members on the Board of Education. There appears nothing in the minutes of the Charter Review Commission that expressly states the makeup was to include more than 4 members of any one Party. At least 4 of the Charter Review Commission members understood that to be the case. The Chairman of the Charter Review Commission submitted the written amending language to the Legislative Council. There does appear to be some comment by the Town Attorney as to the clarity of the maximum Party membership language. The Chairman did recognize that by including certain statutory citation that one Party might secure 5 of the 7 seats, however, what discussion or public information was provided as to this is unclear. Democratic members assumed that the additional amending language as written provided sufficient clarity that the “bare majority” meant no more than 4 members of any one Party. Certainly, neither the DTC, nor the majority of Charter Review Commission members would have approved a move from a 3-3 to a 5-2 makeup. The language was adopted and the Town Charter was amended accordingly.

It is also questionable whether voters would have approved the Charter Question that shifted the makeup of seats from 3-3 to 5-2. Given that the question posed to the voters did not include reference to C.G.S. Section 9-167(a) – a Section that provides one definition of “bare majority” – were voters aware that this language would eventually be included in the Charter? Query, what the voters were actually voting on. Note, there is an absence of C.G.S. Section 9-167(a) in the Charter Question.

LEGAL ANALYSIS

Town Charter Section 2-30(c) as amended reads:

The number of members of any one political party who may be elected to serve on the Board of Education shall not exceed the maximum of the whole membership of the Board as prescribed by the provisions of Section 9-167(a) of the Connecticut General Statutes, as amended. 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.

The ambiguity of language occurs because Section 9-167(a) provides that a definition of “bare majority” may be 5-2 on a seven person board. It also provides that a town may restrict that definition to a more balanced number (4-3), if it chooses. If the amendment had stopped there it would be clear that a 5-2 makeup is permitted. Instead, the language continues – “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.” One interpretation is that the additional language tightens the balance of 9-167(a) from 5-2 to 4-3. Query, The question arises – [A]t each Town Election – does that mean the number of candidates to be seated out of the seven board members to be seated – “bare majority of seven” is a maximum of 4. Or, in the recent election, does this mean of the 5 seats vacant that “bare majority” is 3 of the 5 such that two Democrats would have to be seated. The Town Attorney has opined that in the November election there were actually two elections, one for the 2 year vacancy, a bare majority being 1, and then a separate election for the remaining 4, four year term seats would be 3. This interpretation would permit 4 of the open 5 seats to be secured by one Party, thus in total equaling 5 Republicans and 2 Democrats. It is true that for vacancies, that seat is filled first for purposes of minority representation (9-167(d)). We can find no law or statute that says this constitutes two separate elections though. We would suggest that there was only one election in November, one election for numerous elected offices.

With this analysis in mind, we now turn to whether a legal challenge would succeed in rectifying the issue. A recent case is helpful in understanding the avenue of jurisdiction and likelihood of success. The Connecticut State Supreme Court in Lopez v. Board of Education 310 Conn. 576 (2013) cites “Historically, the writ of quo warranto originated as a device to require [Norman Kings’] barons to justify their claims to power or to abandon them…Today, unless otherwise provided by statute, a quo warranto action is the exclusive method of trying the title to an office…[I]t lies to prevent the usurpation of a public office or franchise …Thus, the writ of quo warranto developed and has continued as a limited and extraordinary remedy…to test who the lawful public official is…A successful quo warranto action unseats an illegal office holder and declares the position vacant. It does not place the rightful claimant into the office.” 590-591.  Of note, any taxpayer has standing to bring a quo warranto legal challenge once the office holder has been seated. It would appear the burden to be carried weighs on the occupant of the office, however, the lightest burden of proof of more likely than not applies.

The Town Attorney suggests that the language of 2-70(c) of the Town Charter is of significant ambiguity. The rules of statutory interpretation require that upon ambiguity the intention of legislators (in this case the Charter Review Commission and/or Legislative Council) must be examined. It would appear that the intent of the language is inconsistent. Despite the absence of such intent by some members of the Charter Review Commission, as well as the silence even after the publication of intention in the Newtown Bee, it does appear that the Chairman was aware of the 5-2 possibility, and with the documented comments by the Town Attorney potentially some members of the Legislative Council were aware as well. Resultantly, after much legal consultation including that at the highest level of Democratic Party State Central, we believe given the burden of proof required as to intent, the Court will likely allow the decision of the Town Attorney to stand, i.e. we would not be able to satisfy the burden of proof that it was more likely than not the intention of the framers didn’t intend to allow a 5-2 seating. If the Town Attorney had opined differently, the shoe would be on the other foot and the outcome perhaps different.

Finally, the purpose of this Statement is not to cast aspersions or enter into conspiracy theories. It is safe to say that one Party could have been more forthcoming if in fact it was promoting a change from 3-3 to 5-2, especially after the requested explanation of the Charter Question in the Newtown Bee went unchallenged. It is also safe to say that our Party could have been more diligent in reviewing the proposed Amendment. When we make these observations we particularly include the DTC. There is no question that all involved in this issue want what is best for Newtown, including what was most likely understood to be the intent of the voters who approved the Charter Question. The most constructive way to dismiss those that would find ill-intent or some conspiracy plot would be for the majority Party led Legislative Council to immediately appoint a new Charter Review Commission to correct the amended language of the Town Charter such that no one Party may seat more than four members on the seven-member Board. The correction would then be implemented in two years at the next election.

We hope this is helpful to the public in understanding the issue, and moving forward to correct the matter.

James Juliano

Chairman, Democratic Town Committee

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