City law firm speaks up on vacancy

By Charles Sercombe
The city council vacancy kerfuffle has a new wrinkle.
Recently, City Manager Katrina Powell asked the city’s law firm for another opinion on how to go about filling a vacant seat on council.
The only legal opinion the city administration has been following on the matter was written by former City Attorney James Allen in 2007.
As it turns out, the new opinion not only agrees with Allen, but also has stinging words for the city councilmembers who refused to at first declare a vacancy and those who insist the person to fill the seat of Titus Walters, who died recently, should be Rashad Almasmari.
The first admonishment was at Councilmembers Anam Miah, Robert Zwolak, Mohammed Hassan and Abu Musa for failing to declare Walters’ seat vacant at a special meeting that was held just to do that one act.
Councilmember Andrea Karpinski motioned to declare the vacancy but none of the other councilmembers would second the motion to take it to a vote.
The law firm, Giamarco, Mullins & Horton, said the councilmembers “failed to comply with city law.” At the time the legal memo was written, before last Tuesday’s regular council meeting, the law firm said the council was not only in “violation of city law” but also violating the Emergency Manager’s Final Orders.
During the course of the debate on what the charter means when it comes to filling a vacant seat on council, a number of people have described the charter as being ambiguous on the matter. The law firm took an opposite viewpoint, saying the charter’s procedure to fill a vacancy is “unambiguous.”
There is also debate on what the charter means when it says the next person who fills a vacancy is the fourth-place finisher. Some say that is the same as saying it’s the next highest vote-getter.
Others take a strict reading of that phrase and insist it’s literally the fourth-place finisher.
In the memo from the law firm, the two are referred to as one and the same thing.
Councilmembers who say Almasmari should take the seat because he was the fourth-place finisher in Walters’ race and that Perrotta came in second for the half-term are using that argument as a “political power play … to have the candidate of their choice appointed.”
Councilmembers Miah, Hassan, Zwolak and Musa are taking that position.
Not only does the memo call that line of thinking a “political power play” but says it contradicts the charter, which wanted to take “successorship out of the council’s hands and place it in the hands of the electorate,” said the memo.
That clause was put in the charter to prevent council bickering and in-fighting when a vacancy came up under the old charter.
As for those who argue that Perrotta is not the next one in line for the seat because he ran for a term that had been vacated and had two years left in it instead of the full four-year term Walters ran for and won, the legal memo said the charter makes no reference to two-year terms.
In other words, the legal memo said “there is no such thing as a two-year term under the city charter.
“It is clear that Mr. Perrotta indeed ran for a four-year term,” the memo said. “The fact that there were only two years remaining on the four-year term at the time of the election is of no consequence. It is our opinion that, under the charter, all council seats are equal. …”
The memo further states: “Because there is no distinction in the charter about separate pools or elections, the term ‘general election’ must be read to encompass all pools of council candidates at any given election.”
Using that interpretation, Perrotta came in fourth place when both election pools are combined.
Those insisting on separating the pools of candidates, the memo said are, “myopic. …This view is illogical and contrary to the charter.”
Going back to the incident in 2007 when Councilmember Rob Cedar died and left a vacancy, Allen’s opinion on who fills his seat was not challenged by anyone, and thus set precedent, the memo pointed out.
Not only that, the council at that time did not attempt to change the charter’s language even though there were some who did not agree with Allen’s opinion.
“If council were displeased with the prior interpretation by Allen, then the appropriate measure would have been to either challenge it in a court of law or amend the charter,” the memo said. “Neither step was taken.”