Fairfield special election court case heads to state Supreme Court

FAIRFIELD — Six months after the special election that sent Democrat Kevin Kiley to the Board of Selectmen, a court case over that election is still ongoing.

There was some movement this week, however, when the case was moved from the Appellate Court to the state Supreme Court.

Of the transfer, attorney James Baldwin said the case is “where, as I’ve said from the beginning, it belongs.”

After Superior Court Judge Barbara Bellis ordered the special election be held, Edward Bateson, who had been appointed to fill the vacancy on that board, and Selectman Chris Tymniak, both Republicans, filed an appeal. They are asking the June election be voided and Bateson reinstated.

Kiley won the special election over Bateson by a vote of 5,434 to 3,727.

Prior to the election, Baldwin — Tymniak and Bateson’s attorney — argued that an automatic stay was in place, an argument that was dismissed by Bellis and affirmed by the Appellate Court, which said there was no stay in effect preventing the special election.

Baldwin previously sought certification to the state Supreme Court regarding the ruling on the stay, but that certification was denied.

Joel Green, one of the attorneys for the Democrats who initially brought the court case to force the election, argued there was no legally-recognized procedural basis for a stay and the petition, filed on June 21, 2017, was filed after the election was held and “that the issue was then moot.”

“On June 6, 2017, Kevin Kiley was elected by the voters of Fairfield to fill the vacant seat on the Board of Selectman by a wide margin,” Green said. “The defendants are continuing to pursue an appeal pending in the Appellate Court seeking to overturn the election at the expense of the taxpayers of Fairfield.”

So far the appeals process has cost an estimated $55,000, based on bills received by the town from the attorneys on both sides of the issue.

Baldwin filed his reply brief Nov. 6, and now, he said, they “wait for the Appellate Court to schedule oral argument. That is typically three to four months from now.”

In his filing, Baldwin stated he is representing Bateson, Tymniak, the town, and the Board of Selectmen. First Selectman Mike Tetreau, however, has informed Baldwin he is not authorized to represent the town.

The issue of representation was raised during the trial court hearings, but Bellis said that is something for the Appellate Court to sort out. Bateson and Tymniak hired Baldwin at a special meeting of the Board of Selectmen that they called. Tetreau has argued that not only did they not have the power to call the special meeting, but that the charter gives the authority to hire town attorneys to the first selectman.

Baldwin argues in his brief that the town charter only allows for a special election for a Board of Selectman vacancy if it is not filled by appointment within 30 days. While the court ruled the town charter didn’t address the term of the appointee, Baldwin said, “It is a matter for common sense that the person filling the vacancy was for the unexpired term of that vacancy as there is no other feasible interpretation.”

According to state statutes, an appointee serves for the remainder of the term or until a special election is called, following the proper procedures.

Baldwin also noted that the plaintiffs stipulated for the court case that Tymniak and Tetreau appointed Bateson “to serve for the remaining term of the vacancy (12/6/16 to 11/20/19).”

“The legislative history and the record establish that it was the intent of both the Board of Selectmen and the electors that, when the remaining selectmen filled a vacancy, the replacement appointee’s term is the remainder of the term being filled,” Baldwin said.

He argued the trial court and the plaintiffs “contradict this essential fact when they state that only Connecticut General Statutes 9-222, and not the town charter, addressed the length of the appointee’s term.”

In the brief filed by Green and attorney William Burke, they cite the state statute which reads, “Any person so appointed shall serve for the portion of their term remaining unexpired or until a special election is called pursuant to petitions filed with the Town Clerk.”

“As the charter does not address the term to be served by the appointed person, and neither authorizes nor forbids a special election, the defendants’ restrictive interpretation of the charter would create a conflict where none exists,” the brief states.