OSWPCA: Sunshine / Letter to Bd of Selectmen - Pace, 4Mar10

Text facsimile

---------------------------> Joel R. Anderson

                             13 George Drive
                             Old Saybrook CT 06475-2636
                             860 388-9858
                             http://govtwork.home.att.net/
                             4 March 2010
Office of the Board of Selectmen
Michael A. Pace, First Selectman
302 Main Street
Old Saybrook CT 06475-2384
                    Follow the money.
Dear Selectman:

My rights under the Connecticut Constitution trump your Wastewater Management District (WWMD) ordinance.


CONSTITUTION OF THE STATE OF CONNECTICUT

ARTICLE FIRST

SEC. 1. All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.

SEC. 7. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.

SEC. 11. The property of no person shall be taken for public use, without just compensation therefor.

SEC. 20. No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.


Details of the Town's malfeasance:

The Town was found guilty by the Court of willfully polluting. The Court did not find a subset of the Town's citizens guilty, nor did the Court find any individual property owners guilty, the Court found the Town guilty.

The Town was fined. The Town paid the fine under its joint and several liability: it did not create a special district to pay half its fine.

The Town was required by the Court to end pollution. Under its joint and several liablity the Town could have 1) built a sewer plant and paid for it, or the Town could have 2) solved its problem piecemeal by replacing polluting systems under eminent domain and paying for them. In either case 100 percent of the cost fell to the Town to pay, not to a subset of the Town property owners or to individual property owners. To decide between the two options, the Town could have selected electors under Sec. 7-6.

Did the Town proceed under its joint and several liability? No!

Instead of meeting the order of the Court under its joint and several liability, the Town cobbled up in a legal tourettes worthy of John C. Yoo or Jay S. Bybee, something it called a Wastewater Managment District (WWMD). The WWMD was an ordinance whose regulations would push off half (50 percent) the Town's 100-percent obligation to remedy the Town's pollution problem onto the property owners that would reside within the WWMD.

The problem for the Town then became, How to do this 'push off' of half the Town's cost (to a WWMD) under color of law?

The Town solicited a legal opinion from the Town Attorney; Who are valid electors for the upcoming referendum (11Aug09)? the opinion delivered said that Sec. 7-6 applied. This was wrong. There was no Town-wide issue. What was to be decided in the referendum was whether or not a subset of the Town's property owners were to be forced to bear half (50 percent) of the cost of the joint and several liability that rightfully belonged 100 percent to the Town. The Town simply ignored the requirment to select electors for a specially burdened district, G. G. A. CHAPTER 97a, Sec. 7- 147b(g), even though if ever a district was to be specially burdened it was the proposed WWMD proposed by the Town.

Had the Town properly qualified 11Aug09 electors under Sec. 7-147b(g), the referendum would have been defeated. No voter within the WWMD in their right mind would volunteered to pick up half (50 percent) of the Town's 100-percent joint and several liability burden.

By wrongly qualifying electors for the 11Aug09 referendum (under Sec. 7-6), the Town BRIBED voters living outside the proposed WWMD to vote for it. If the WWMD ordinance passed, electors outside the WWMD would be relieved of half (50 percent) of their joint and several liability under the Court order (or so they were meant to think). Duly incentivized, electors outside the proposed WWMD would vote. The referendum passed, as expected, based as it was on the Town's bogus selection of electors.


Why selecting electors under Sec. 7-6 was wrong:

By selecting Sec. 7-6 criteria for electors, the Town created two (2) classes of electors. One class resided outside the proposed WWMD. The other class resided within the WWMD. Their respective powers were far from equal. The class residing outside the WWMD could relieve themselves of half (50 percent) their cost of a pollution solution that was 100 percent laid on the Town by the Court. The class within the proposed WWMD was limited to objecting to being victimized monetarily by the other class. Not only would the class within the WWMD have to pay half (50 percent) of the Town's 100 percent share, they would also be screwed again because they were on the hook under joint and several liability for the bonds issued by the Town to pay for the remaining half of the Town's 100 percent liability.

The WWMD proposal was wrong out of the box because it was designed to subvert the order of the Court. It was the Town, under joint and several liability, that was to correct its behaviour, not a subset of its citizens or individual property owners. The means by which the Town established the WWMD, by the creation of two classes of electors with unequal powers, was unconstitutional.

Does the Town need to know more before it moves to correct its folly?
                             Very truly yours,


                             Joel R. Anderson


N.B: a copy of this letter is posted to my website,
     http://oswpca.home.att.net/

NOTES:

C. G. A, CHAPTER 90, Sec. 7-6. Eligibility to vote. At any town meeting other than a regular or special town election or at any meeting of any fire, sewer or school district or any other municipal subdivision of any town incorporated by any special act, any person who is an elector of such town may vote and any citizen of the United States of the age of eighteen years or more who, jointly or severally, is liable to the town, district or subdivision for taxes assessed against him on an assessment of not less than one thousand dollars on the last-completed grand list of such town, district or subdivision, or who would be so liable if not entitled to an exemption under subdivision (17), (19), (22), (23), (25) or (26) of section 12-81, may vote, unless restricted by the provisions of any special act relating to such town, district or subdivision.


G. G. A. CHAPTER 97a, Sec. 7-147b(g)

HISTORIC DISTRICTS AND HISTORIC PROPERTIES

Sec. 7-147b. Procedure for establishment of historic district.

Sec. 7-147b. Procedure for establishment of historic district. Prior to the establishment of an historic district or districts, the following steps shall be taken:

...

(g) The clerk or his designee shall, not later than sixty-five days from receipt of such report, mail ballots to each owner of record of real property to be included in the proposed district or districts on the question of creation of an historic district or districts, as provided for in sections 7-147a to 7-147k, inclusive. Only an owner who is eighteen years of age or older and who is liable, or whose predecessors in title were liable, to the municipality for taxes on an assessment of not less than one thousand dollars on the last-completed grand list of the municipality on real property within the proposed district, or who would be or would have been so liable if not entitled to an exemption under subdivision (7), (8), (10), (11), (13), (14), (15), (16), (17), (20), (21), (22), (23), (24), (25), (26), (29) or (49) of section 12-81, may vote, provided such owner is the record owner of the property, thirty days before the ballots must be returned. Any tenant in common of any freehold interest in any land shall have a vote equal to the fraction of his ownership in said interest. Joint tenants of any freehold interest in any land shall vote as if each joint tenant owned an equal, fractional share of such land. A corporation shall have its vote cast by the chief executive officer of such corporation or his designee. No owner shall have more than one vote.


Joel Anderson comment: on Town Attorney Michael E. Cronin, Jr's Memorandum of 8Jul09, to Sarah Becker, Town Clerk.

Cronin:
"You have asked me to answer certain questions with regard to the right to vote at a Town Meeting. The statute which establishes this is Section 7-6 of the General Statutes of Connecticut, a copy of which is attached hereto as "Exhibit A". The important points to understand about this section are as follows: ...

Joel Anderson comment: Who are electors for the Town Meeting is the wrong criteria. The correct criteria, Who are the electors to establish a special district.

Cronin (cont):
"The third requirement for voting has been the subject of controversy for a period of time. In my opinion, the requirement for ownership of property must be that the ownership is in that person's individual name. It cannot be in the name of a trust, Limited Liability Company, corporation, or any other such entity, even if the person claiming the right to vote is the full 100% ownership of any of those entities. Also, the question might arise as to who is entitled to vote when the property is owned by two or more persons, with one of those individuals having a life use of the premises. My opinion on this is that only the person with the exclusive life use would have the right to vote. The holder of the remainderman interest in the property (i.e. those persons who would own the property outright if the life use tenancy dies), would not have the right to vote because under Connecticut law, a remainderman is not personally responsible to the Town for a tax bill in this instance.

"Another question which has arisen is what happens when property is owned by more than one person, and one of those persons does not actually appear on the Assessor"s list as the owner. Such other ownership is commonly shown on the list as being "et al". It is my opinion that that "et al" person has the right to vote, even though that person's name is not on the Assessor's list. If this question should arise, it would be appropriate to have a mechanism available so that the Assessor's office or the Town Clerk's office can verify ownership by that individual. Also, an Affidavit by that person as to ownership might well suffice to qualify that person to vote.

"The minimum requirement for voting is a $1,000.00 tax assessment. If there are multiple owners of the asset, you would divide the total assessment by the number of owners, and if the voter has a resulting value of more than $1,000.00, he or she is eligible to vote. If the value is less than $1,000.00, even though the assessment of the property is greater than that figure, that person does not have the right to vote. (For example - If a motor vehicle is assessed in two person's names, for a value of $2,000.00 or more, both would be entitled to vote. However, if the motor vehicle is assessed for $1,500.00, and there are two owners, neither one is entitled to vote)."

Joel Anderson, comment:

The Town should carefully consider the ramifications of Cronin's analysis. I am not a lawyer: I am not qualified to give legal advice. That said, my reading of Sec. 7-6 agrees with Cronin's. That is, horrifyingly, a motor vehicle registered in Old Saybrook can qualify electors in the amount of one (1) elector per $1000 in assessed value.

That this opens the door to abuse of process should be clear.

If Trust properties are denied the vote, they can, as Attorney Cronin said in a phone conversation on 24Feb10, "register a car here if they really wanted to vote."

Here's the problem: If anyone, any entity, takes the trouble to register, jointly with family and friends, one (1) $20,000 assessed vehicle, that action will qualify 20 family and friends to vote. If they jointly register a Lamborghini, they can qualify 100 voters. Think business owners with beach houses and employees willing to please the boss.

The import of this will not be lost on the beach associations.

The associations will quickly move to register their beaters, their go to the RR Station cars that they leave here year around, to family and friends. There's no need for family and friends to live in Old Saybrook, or even visit here, they can all be organzied by mailing list and absentee ballot to vote the interests of the association.

It isn't illegal to 'Get Out The Vote,' it's downright patriotic.

By Sec. 7-6, the average Old Saybrook resident, dependent on the Town for schools and services, will lose control of everything that makes Old Saybrook a nice place to live in favor of ever lower taxes for beach associations.


c:

Office of the Board of Selectmen
William A. Peace, Selectman
302 Main Street
Old Saybrook CT 06475-2384

Office of the Board of Selectmen
Carol Manning, Selectman
302 Main Street
Old Saybrook CT 06475-2384

Robert W. Fish
Treasurer, Old Saybrook
49 Obed Heights Rd
Old Saybrook CT 06475

Michael E. Cronin, Jr.
Old Saybrook Town Counsel
201 Main Street, P.O. Box 454
Old Saybrook CT 06475

John E. Wertam, Partner
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, CT 06103-1919

Hon. Richard Blumenthal, Attorney General
Office of the Attorney General
55 Elm St.
PO Box 120
Hartford CT 06141-0120
re Public Inquiry #339871 or #340861 (or both)

Nora R. Dannehy, US Attorney
US Attorney's Office
Connecticut Financial Center
157 Church Street, Floor 23
New Haven, CT 06510

Eugene M. Evangelisti, Chairman OSWPCA
Town of Old Saybrook
302 Main St
Old Saybrook CT 06475

Gratia Lewis, Financial Mgr OSWPCA
37 Old Boston Post Rd
Old Saybrook CT 06475