Wednesday, May 07, 2014
SOUTHAMPTON — Town Moderator Robert K. Floyd said he started the swearing-in process for newly elected officials Tuesday, despite concerns that Monday’s election was not legal.
Floyd administered the oath to Town Clerk Janine Domina, who then swore in other new officials, acting on the advice of the town attorney and staff members at the state’s Elections Division.
Town officials acknowledged Monday that the warrant announcing the election was never given to the town’s constables to sign and post in public places, as is required by law for municipal elections.
But they said they were told by state Elections Division staff to go ahead with the swearing-in process because they can seek special legislation to validate the election results after the fact.
“It’s still an invalid election,” Floyd said. “They’re not saying the election is valid, but that the results are valid until proven otherwise.”
State Rep. Peter V. Kocot, D-Northampton, said Tuesday that his office is helping the town draft a special bill that will validate the election results. As in 2007 when the election was not properly posted, town officials must ask Gov. Deval Patrick to file the bill for them.
“It requires a two-thirds vote to pass, but in most cases like this, there is very little opposition,” Kocot said.
Meanwhile, Floyd, who filed a complaint when the town did not properly post its annual election in 2007, said he does not plan to do so this time. But when town officials asked him Tuesday morning to administer the oath of office to Domina, he requested a legal opinion from the town attorney and verified it with the Elections Division before agreeing to administer the oath.
Brian Riley, an attorney at the Boston law firm Kopelman & Paige that represents Southampton, wrote in a letter to Town Administrator Heather Budrewicz that the election results should be considered valid “unless a court deems otherwise.”
“They cannot be deemed invalid by decision of local officials, and given the minor nature of the irregularity, there is no reason to assume a court would overturn it,” he wrote.
He said that decision was based on advice from the Elections Division and case law that decided “voters should not be disenfranchised by minor or insubstantial irregularities or defects” in an election.
“To the extent that there were any formalities that did not occur with posting the warrant, we will take care of that shortly” with legislation, Riley wrote.
Kocot on Tuesday declined to speculate how long and involved the process would be, although he said he was not aware of any “controversy” that would need investigating and could delay the vote.
In 2007, when the Select Board failed to sign and post the election warrant seven days before the polls opened, Massachusetts Secretary of State William F. Galvin’s office investigated and held a hearing in Boston. His office eventually found no issues and, after legislation was passed, elected officials were sworn in four months late.
Rebecca Everett can be reached at email@example.com.