An attorney for Bridgewater councilors Mike Demos and Peter Riordan called the recall initiative to remove them ?illegal? and asked their fellow councilors to ?repudiate? the effort.
?While Mr. Demos and Mr. Riordan would like to avoid any court action in this matter, should the town clerk allow the petitioners to proceed under the legally deficient affidavits or should the petitioners initiate the process anew, court action will be inevitable,? Attorney Anthony J. Pignone wrote in a Sept. 27 letter to the Town Council.
According to Pignone, the 1990 Special Act governing recalls is not valid because it was not properly enacted; the charter passed last year supercedes the Special Act; and the recall petition submitted last month was not in the required form of a legal affidavit.
But Town Clerk Ron Adams said he disagrees the form was improper and short of a court order has no intention of halting the process.
And Adams said it is not his place to make a legal determination as to the validity of the 1990 Special Act.
Associate town attorney Stacy Blundell reviewed the Special Act at Adams? request and rendered an opinion on July 18 that it ?remains in full force and effect? and was not superceded by the 2010 charter, which eliminated selectmen and created a Town Council.
?Until a court tells us the opinion of town counsel is not a proper opinion, the town clerk continues the process,? Adams said.
In her opinion letter, Blundell said councilors should now perform the duties relating to the recall process assigned to selectmen under the Special Act; and the provision requiring the petition to be signed by 10 percent of the registered voters of the town should be reinterpreted to mean 10 percent of the registered voters within a district in the case of district councilors.
But Pignone said there is a ?significant body of law? addressing the issue of the status of a special act following adoption of a home rule charter and Blundell ?conspicuously fails to reference any of these laws in support of her opinion.?
Blundell based her opinion on the fact the charter is silent as to the recall of councilors, but Pignone said ?the charter already provides for the removal and replacement of town council positions.?
He said Article 2-1 of the charter refers to vacancies that occur as a result of a councilor moving or redistricting and Article 2-12 provides for the removal of councilors convicted of certain crimes. The fact� the charter doesn?t provide for a recall process doesn?t mean the special act is not superceded, Pignone said.
Many towns do not have a means of recall of elected officials.
?The special act attempted to give the voters, who were then the legislative body, the ability to remove certain elected officials. However, the voters, by adopting the charter, abdicated their role as the legislative body and placed that responsibility in the hands of the council,? Pignone said.
As to the 1990 special act, he said ?it is well established law in the Commonwealth? that only a ?charter commission? may initiate a change in the term of office of a legislative body and the proposed change must be approved by a 2/3 majority vote of town meeting, not a simple majority. Pignone said the town never convened a charter commission in 1990 following the vote of town meeting, and the measure passed on a voice vote, rather than the required two-thirds majority vote.
As to the petition submitted last month, the special act requires an ?affidavit? be filed by at least 100 petitioners to commence the recall process. Pignone said an affidavit has a very specific legal meaning and must contain language that it was signed under "the pains and penalties of perjury" of be signed before a notary, neither of which was done.
He said the state supreme court has determined in Galvin v. Town Clerk of Winchester, 1975, that a ?simple petition does not comply with this requirement.?
Mel Shea, a member of Citizens Forum, the group organizing the recall effort, said ?all of this creates a smokescreen where we may need another judicial decision down the road.?
David Moore, a ?reluctant supporter? of the recall, said the validity of the special act is a legal question he?s not qualified to adjudicate.
But, he said, he?d be inclined to rely on town counsel?s opinion over an attorney hired by the councilors being recalled.
?You can hire an attorney to give you an opinion on anything in the world. That?s how they make their money,? Moore said.
But Demos said Pignone?s letter raises ?a number of troubling questions about how this recall was even allowed to commence under the guidance of the town clerk?s office and the town counsel.?
?This improper and unlawful recall effort is driven by a small group of individuals who support the town manager. It?s designed to erode the authority of the town council, who are the voice of the people in town government,? Demos said.
But Moore said that?s precisely the problem. The people did not feel their voice was being heard by their councilors.
boston bankruptcy attorney boston bankruptcy attorneys boston bankruptcy lawyer
Walang komento:
Mag-post ng isang Komento