Hopkinton Selectmen To Address Election Kerfuffle

(CLARIFICATION: John Belger was a write-in candidate. Added 1:23 a.m., June 1, 2011.)

Tonight at 8, selectmen are scheduled to discuss appointing two residents as library trustees following a tie vote in the May 16 election between candidates Leda Arakelian and June Harris.

The aftermath of the tie vote caused the resignation of assistant Town Clerk Deborah Holbrook.

The library trustees race involved five candidates for five seats. Besides Arakelian and Harris, the other candidates were Marie Eldridge, Michael McNamara and John Belger, all of whom were elected.

A sixth candidate, write-in John Pulnik, received 25 votes.

Some background: All five seats were empty after the library board of trustees dissolved itself in February at the same time it sold the library to the town for $1. The trustees did so to make the library eligible for a state grant which would pay about half the cost of expanding and modernizing the library.

Selectmen re-appointed the trustees to temporarily fulfill the library board’s duties until the May election. None of the trustees from the previous board sought to be elected to the new board.

Referring to town bylaws, selectmen decided in February that at the May 16 election, the candidates receiving the most and second-most number of votes would be trustees for three-year terms.

The candidates receiving the third and fourth highest vote totals would become trustees for two years, and the candidate with the fifth-most number of votes would receive a one-year term.

Back to the present: Arakelian and Harris both received 1,013 votes, the second highest total after Eldridge. This caused a problem between the second three-year seat and one two-year seat.

After consulting with the state Elections Division, Town Counsel Ray Miyares was given the choice of recommending to the Town Clerk that either Arakelian and Harris, the candidates who were tied, were not elected; or that all the candidates except for Eldridge were not elected. The relevant section of state law is at the end of this report.*

Miyares recommended that the clerk decide that Arakelian and Harris were not elected.

According to Arakelian, a freelance writer and photographer at Hopkinton Patch, she and Harris were both willing to take the two-year seat, but that wasn’t a legally available option.

The library trustees will join the selectmen's meeting tonight. Selectmen are not obligated to appoint either Harris or Arakelian, though given the pair's vote totals, unless extrordinary circumstances intervene, they probably will.

The episode might have been comic, except for Holbrook’s resignation.

Because a May 16 ballot question involved whether Town Clerk Ann Click’s job would become one appointed by selectmen rather than an elective office, Holbrook ran the election.

Once voters decided that Click’s job would remain elected, Click took charge of the library-trustee tie.

In a letter of resignation, the text of which follows**, dated Friday, Holbrook said it was inappropriate for Click to deal with the election’s aftermath. She also expressed disagreement with Town Counsel Miyares's interpretation of state election laws.

Holbrook said she was left in the dark about decisions regarding the tie vote, and that she did not agree with Miyares’s  “odd recommendation that two candidates with over 1,000 votes each are not elected and one with only slightly more than 100 votes is.”

Belger received 136 votes and will fill the one-year term.  Eldridge had 1,108 for one three-year term, Arakelian and Harris had 1,013, and McNamara 937 for one two-year term.

*Chapter 50, Section 2, of the Massachusetts General Laws

In elections, the person receiving the highest number of votes for an office shall be deemed and declared to be elected to such office; and if two or more are to be elected to the same office, the several persons, to the number to be chosen to such office, receiving the highest number of votes, shall be deemed and declared to be elected; but persons receiving the same number of votes shall not be deemed to be elected if thereby a greater number would be elected than are to be chosen. Except as otherwise provided, this section shall apply to all nominations and elections by ballot at primaries or caucuses. Nothing herein shall derogate from the provisions of chapter fifty-four A.

**Holbrook's letter of resignation

To the Town Clerk, Town Manager, and Board of Selectmen,

I hereby resign as Assistant Town Clerk, due to the Clerk’s refusal to honor the will of the voters expressed in the Annual Town Election.
As you know, I ran that election when the Clerk was prohibited from doing so due to her personal interest in the outcome. Acting as Clerk for the election, reporting the results was my responsibility, and “results” per Massachusetts election laws M.G.L. Ch. 50 § 2, includes determination of the effect of a tie.

Following the tie for the Board of Library Trustees, I examined the election laws and determined that although no one could be elected to one of the 3-year seats, (emphasis added) the tied candidates (Leda Arakelian and June Harris) should be awarded the two 2-year seats. This is due to a statute which says in the event of a tie, “persons receiving the same number of votes shall not be deemed to be elected if thereby a greater number would be elected than are to be chosen.” Looking at the 3-year seat, neither Arakelian nor Harris could be seated. However, nothing in the statute requires that those candidates be disqualified, which is exactly what the Clerk has done.

With no justification and without regard for the prohibition against her running the election, the Clerk has taken this decision from me and disqualified the two tied candidates. She says she is simply following the advice of Town counsel Ray Miyares. I have repeatedly asked counsel how he can interpret the statute to disqualify the tied candidates, and his response has simply been that he would explain if the Clerk asked, and the Clerk has refused to ask. Counsel has relied on the statute quoted above to eliminate both one 3-year seat and one 2-year seat, but has refused to answer when I have pressed for an explanation of how his comparison of those two positions could be based on a statute which applies only if there are more candidates than seats.

When I first brought my interpretation to the attention of Town counsel and the town clerk, it was positively received, with an attorney in Miyares’s office calling it the “most equitable” outcome – barring any “prohibitive language.” Since Miyares became involved again, however, he has rejected this interpretation without giving any reason it was prohibited or indeed any support whatsoever for his odd recommendation that two candidates with over 1000 votes each are not elected and one with only slightly more than 100 votes is. I attempted to confer with the Massachusetts Elections Division, but was informed that they had provided their reasoning to Miyares and I should get it from him. Again, he refused to provide it. If I was wrong, so be it, but I never received any reason why this scenario is wrong, other than counsel’s say-so. Then, the Town Clerk blindly adopted that recommendation.

I believe that this interpretation is based not on the law but on emotion. (Emphasis added.) Miyares has been upset with me ever since I confronted him about his advice to the Clerk just after the election that she should recount the ballots, on her own with no supervision and no request from a candidate, and then keep the results “under her hat.” As Miyares has since admitted, such actions would have violated elections laws. (I have expressed my concern about this advice to both the Clerk and the Town Human Resources department.)

Since the election I have expended great efforts to try and come to a reasonable, fair conclusion to the tie vote in the race for the Board of Library Trustees. I have repeatedly asked the Clerk and counsel to justify their decision. (Emphasis added.) I have, however, been unsuccessful in convincing the Town that the interpretation these two have taken is not the most fair or even a rational approach, that it does a great disservice to the voters, and that it does not uphold the highest ethical standards that are expected from us as employees of the Town of Hopkinton.

Ever since I became aware of the problem created by the tie vote on May 17th, I have struggled with how this was being handled. I tried to convince others that all the candidates, not just the two who had tied votes, had a right to know that there was an issue and of the ability to file a petition for a recount. Notice was not given until Tuesday, May 23rd, a week after the election results were announced and only 72 hours before the filing deadline. This was very troubling to me. I was placed in charge of the election, which I was proud to do, but was misinformed as to what my ultimate responsibility and role was until after we discovered the tie vote.

I take great pride in providing the Town of Hopkinton the utmost dedication, professionalism and highest ethical standards, and I wholeheartedly feel that the Clerk’s decision on the election goes against everything we as town employees are expected to do and everything our Charter stands for. I would have rejected town counsel’s unsupported recommendation if I had been allowed to report the election results as I should have.
We had 1,744 town voters show up on one very inclement day, May 16, 2011, to exercise their fundamental right to vote, to speak their choice by a ballot. Leda Arakelian and June Harris both received the votes of 1,013 of those voters – that is, almost 60% of the voters who cast their ballots voted for these two candidates. The Clerk’s decision entirely disregards those votes, without any value, and that is wrong. By this decision, we are telling those candidates who worked so hard for a well-deserved seat that they are not entitled to one because of the way two people interpret the ballot. We are trying to bring more residents to town meetings and town elections, and we are trying to sign up more residents to volunteer on our many boards and committees, but I ask how this is to happen when democracy is handled this way?

So with a very heavy heart and no other job in sight, I hereby resign from my position of Assistant Town Clerk of Hopkinton. This is a matter of principle, fairness to the voters, and the ethical standards of which I work by and always will. I cannot remain in this position while the Town Clerk disregards the will of the majority of our voters.
Sincerely,

Deborah A. P. Holbrook