FAIRFIELD — The special election for a seat on the Board of Selectmen must be held, according to a letter from Secretary of the State Denise Merrill.

Republicans on the Board of Selectmen killed the election in January by overriding a resolution intended to set a date to vote. In doing so Republicans said the town charter only allows a special election if the selectmen cannot agree on an appointment.

On Dec. 7 Republican Ed Bateson was appointed to fill a vacancy created when fellow Republican Laurie McArdle resigned, one year into a four-year term. In response, Democrats spearheaded a petition drive collecting 3,200 signatures and forcing a special election.

“This office is aware of no statutory framework that would allow for the optional disregard of a special election established upon the filing of valid petitions pursuant to Connecticut General Statues 9-222,” the letter from Merrill, and staff attorney Theodore Bromley states.

First Selectman Mike Tetreau said that in light of Merrill’s letter, the resolution to set June 6 at the special election date will be on the agenda at Wednesday’s meeting, along with a report from the town attorney. It appears unlikely, however, that the outcome will be any different.

Attorney James Baldwin, a legal advisor to the Republican Town Committee, said Merrill’s letter does not address the town’s charter. He said according to state law, any charter in place prior to 1953 predates the provisions being cited by the Democrats. Baldwin said the town charter chapter 6.3.B. was written in 1951 and has not been changed, despite numerous charter revisions.

Merrill’s letter further states that is the opinion of that office, which in charge of elections, that once valid petitions are submitted, the Board of Selection must select a date for the special election.

“If the Board of Selectmen fail to fulfill their statutory duty pursuant to Connecticut General Statute 9-222 and 9-164, this office will be force to work with the Fairfield Town Clerk to identify a date for the special election that must be held as discussed above,” the letter states.

Merrill said the relevant portion of the statute states, in part, that any person appointed to fill the vacant selectman’s seat shall serve “for the portion of the term remaining unexpired or until a special election is called as hereinafter provided upon petition of a number of electors of such town equal to five percent of the names on the last-completed registry list.”

Democrats said Tuesday that a planned demonstration prior to Wednesday’s Board of Selectmen meeting will go on as scheduled at 4:30 p.m. The Board of Selectmen meets at 5 p.m., and that meeting has been moved to the Fairfield Museum and History Center.

Merrill’s letter also cites state statutes that give her office the authority as commissioner of elections and states any regulations, declaratory rulings, instructions and opinions provided in written form “shall be presumed as correctly interpreting and effectuating the administration of elections and primaries under this chapter shall be executed, carried out or implemented.”

Baldwin called that paragraph misleading and said he has asked Bromley to issue an amended letter. He said that language simply means that Merrill’s office would simply work with the town clerk to set an election calendar.

The Secretary of the State’s office confirmed they spoke with Baldwin on Tuesday, but they did not agree to amend the opinion letter.

“However, we did state that our office does not have the authority to interpret a town charter,” Patrick Gallahue, the office’s communications director, said. “The opinion provided was based on Title 9 and the general statutes as they relate to the issue of a special election for selectman in Fairfield. Certainly, if a town has a charter that conflicts with state statute, it would be up to the town attorney to address the issue. As for CGS 9-7, it does state that nothing within Title 9 can repeal a charter provision in existence on May 14, 1953. However, as previously stated, the Secretary of the State’s office cannot interpret a town charter so we cannot determine if the requirements located in Title 9 would alter the local charter. That would be an issue for the town attorney to address. “

Baldwin said Lesser’s request to the Secretary of the State’s office does not mention the town charter, and neither does the resolution setting the date for the special election. “Nowhere in Mr. Bromley’s letter is the charter referenced,” Baldwin said, adding that it is not the job of Merrill’s office to interpret local charters. “(Democrats) are looking for a result, not the right answer, which is unfortunate,” he said.

In a statement from Republican Town Committee Vice Chairman Michael Herley, the GOP claimed the special election was an “illegal power grab orchestrated by the Fairfield Democratic Town Committee that violates the unambiguous, clear and plain language of our town charter.”

The action to call a special election is “both unauthorized and inconsistent” with the charter, Herley said.

The RTC statement further claims, “Our town charter expressly states that the procedures set forth in CT state statutes are used only if the remaining members of the Board of Selectmen fail to fill the vacancy within 30 days. Since the vacancy was filled within 30 days, the state statutory procedures do not come into play.”

The chapter cited by Republicans, 6.3.B, reads as follows:

“Method of filling vacancies on the Board of Selectmen. At any time a vacancy occurs on the Board of Selectmen, including First Selectman, a replacement, who shall be registered with the same political party as the person vacating the office, shall be designated by the remaining Selectmen. If the Selectmen designate one of themselves to fill the vacancy, they shall designate another elector to fill the vacancy of Selectman so created. If the vacancy is not filled within 30 days, the vacancy shall be filled in accordance with the procedure set forth in Chapter 146 of the General Statutes for filling vacancies in the office of selectman.”

Baldwin said the word “if” is a condition precedent, and means that the state statute is only to be followed in the event the selectmen cannot reach an agreement on the appointment.

“I am resolute in that being correct,” Baldwin said.

He said another section of the charter specifically mandates using the procedures set forth in the state statutes while also noting that the process for filling a vacancy on the Board of Selectmen is different. The word “if” used in 6.3.B is the only material difference between the two sections. Baldwin said the reason the selectmen procedure wasn’t changed by previous Charter Revision Commissions is “the fact that it was their intent to keep the distinction, that is, this condition precedent that the Board of Selectmen fail to fill the vacancy within 30 days.”

greilly@ctpost.com; @GreillyPost