New Haven Independent

In a strong voice, facing the Democrats on his side of his aisle, Giardiello argued to remove the Democratic majority leader, John Smith who two days earlier had begun his first municipal job as a Town of Branford department head —-Facilities Manager they call it— at $58,000 a year.

“I think there is an error in the roll. I understand that Rep. Smith has accepted a full-time job reporting to the First Selectman. In accordance with the Town Charter and in recognition of the principle of separation of powers of the legislative and executive branches of government, I call on you to declare a vacancy in the Third District,” Giardiello said, referring to the Short Beach section where Smith lives.

And so began a fascinating 90-minute exchange among Democrats who support Cheryl Morris, the First Selectwoman, Democrats who do not and the Republicans. The issues ranged from those posed by Giardiello to questions of paybacks, cronyism, patronage, the conduct of Town Attorney Shelley Marcus and, of course, the law. By evening’s end, Smith did not step down and the issue of holding two posts was left in abeyance.

Morris’s divisive decision to hire Smith, 59, to serve as the town’s facilities manager, a job that centers on hiring contractors and the like, had set off a storm of protest. From Giardiello’s point of view, Smith could not serve in both positions, though it appeared that Smith intended to do just that.

Bruno told Giardiello that Shelley Marcus, Town Attorney #2, had briefed the Democrats in caucus about the Smith case prior to the meeting and that state statutes were on Smith’s side. (Ms. Marcus attends the Democratic caucus, a departure from the prior practices of town attorneys.) Then he called on Marcus.

Ms. Marcus had prepared for what she knew would be an attack on Smith’s decision to take the new job and remain on the RTM, where he has served for 14 years.

She cited state statutes, specifically Section 7-421(b), which applies to classified municipal employees like police and firemen, and 7-421(e) which mentions unclassified town employees. She cited the Branford Charter, section 4G, the section Giardiello referred to, as the one she said had been invalidated more than twenty years ago. However, the Branford Town Code, which is routinely updated, still lists 4G as part of the charter and several RTM members had relied on it.

She cited case law, specifically two key cases decided by the Connecticut Supreme Court, the state’s highest court. The cases dealt with the right of a state employee (“Buonocore v. Town of Branford”) and of municipal employees (“Meyer v. Town of Westport,”) to sit on the RTM in Branford and to run for election to the RTM in Westport. The facts of the two cases differ dramatically from the Smith situation. The 1984 Buonocore decision and the 1989 Meyer decision came at a time in the history of Connecticut when state and municipal employees in some towns did not have the right to run for public office. Neither case dealt with the reverse situation: an already elected official who while serving in public office accepts a town job.

Ms. Marcus made a strong defense for Smith. She believes that because Smith has been hired—-he started work only two days before the June 13 RTM meeting —-his rights “to serve” the town on the RTM have kicked in. She did not mention that he has a six- month probationary period.

She acted the way any lawyer representing a client before a public body would act. Only Shelley Marcus was not privately retained by Smith. She is supposed to represent the town. What didn’t seem to occur to her was that in this situation the RTM’s interests might well diverge from her own. “We had no legal representation; she is supposed to be representing the RTM,” Rep. Lonnie Reed said afterward.

Ms. Marcus was so intent on advocating for Smith that at one point she crossed the line. And when she did, her remarks left RTM members on both sides of the aisle— as well as those in the audience— gasping in disbelief. They came after she and Kurt Schwanfelder, the Republican Minority leader, engaged in the following exchange:

Schwanfelder: “Shelley, I think you are missing my point. The point is we have the reverse issue here. We have the absolute reverse issue. We are not questioning the fact of someone who is a town employee seeking an elective office. I think the question is you have a seated town official who is now taking on a municipal job. I think that is probably more the question at hand and I don’t think you have stated any case law that addresses that in any way, shape or form.”

Marcus: “Mr. Schwanfelder the state statutes encourage this kind of participation; they say that that section of the (Branford) Charter is invalid and I think , I think that what everybody else is missing here is the real point. I think that the real point is that…”

Then she stopped for a second, her face flushed and she said: “Your behavior here is absolutely shameful.”

As the audience gasped, she declared: “You don’t care about the business of the people of Branford. What’s really on your agenda this evening is this is all about partisan politics. The law is extremely clear and Representative Smith is permitted to sit in his post.”

The audience began to react. “Hold it, please,” Bruno said to the agitated group.

Rep. James Walker, III, a Republican, was aghast. ” We are being berated by our own town counsel. This is really inexcusable.”

Scolding the RTM and the townspeople is nothing new. Marcus has made similar remarks in the past, much as her father, Ed, has voiced about citizen remarks he finds offensive.

Rep Reed spoke first: “Ms. Marcus, I really have to take exception to that remark. For so many reasons this is the business of the people. And I think that what Rep. Schwanfelder just said, that this is a reverse situation, is true. We have a sitting member of the RTM, and the majority leader and someone very close to the First Selectman. … And we understand some very skillful people applied for this job. And we are all concerned that this individual had an inside track. And that is the people’s business: Finding the best person for the job and not having any kind of political payoff…”

Republican Rep. Peter Black, an attorney, reminded Marcus of a 2006 Connecticut Supreme Court case (“Morris v. Congdon” ) that among other things held that town Selectmen do not wield powers separate and distinct from those held by the Town meeting , but act as agents of the town meeting. As such, the RTM has the right to review administrative hiring and firing.

“I gave this opinion to the town attorney. She told me she thought it was bad law,” he said.

Black’s comments triggered Ms. Marcus’s feelings. “In this case you have somebody who has been hired,” she told Black. “That person has certain rights. You can’t undo that without probably bringing upon yourself some sort of legal action. And at this point you have no authority to do that. It’s done. The person is hired.”

Black interjected: “This is a matter of legislative supremacy.”

At this point Schwanfelder rose to follow through on what he termed “the crystal clear clarity of Rep. (Ronald) DeFord.” Earlier DeFord said: “My personal concern is the majority leader has received a position as a department head. And I think it would be prudent for this body to examine it to make sure that hire is the best candidate, just make sure everything was done above board. If it hasn’t been than it is our job to look into it. I think it is appropriate to look into because it has the appearance of cronyism.”

Schwanfelder then made a motion that the RTM’s Administrative Services Committee review the process of Smith’s appointment to make sure the best interests of the town had been served.

Rep. Giardiello, who initiated the process, said he was unmoved by the state case law heard that evening. “This is a situation in which a member of the legislative body was hired by the chief administrator of the town and every body should consider the implications of the chief administrator of any town or city starting to hand out jobs to a member of the legislature.” The clear implication was that in offering town jobs to members of the RTM, the First Selectwoman was impairing the RTM’s independence.

Morris, unlike her town counsel seated next to her, said she had no objection to the RTM committee questioning the process.

“In terms of who is the best qualified, well, that is a matter of opinion. Anyone that is in the position to hire people, and I have had years of experience doing it, is knows that the most stellar resume does not necessarily mean that is the person for the job. Nor does it mean that the most qualified on paper is the best person for the job.

“I think John brings a lot to the table. He was my selection. And I think he will benefit the town.” She praised his dedication to the town, his RTM experience, what she described as his managerial experience and construction background and the fact that he started the girls soccer team in town. “He alone started that and it has become one of the successful programs in this town for girls. Certainly that is a demonstration of leadership.”

“So while people have differences of opinion, I need to be comfortable that the people who are working for this town are going to do the best job possible and are going to support the initiatives that I want to put forward. And that is why I selected John.”

Rep. Walker commended Mrs. Morris for her measured comments but observed that this case was handled differently from others. “We do recall when you came here seeking to hire other department heads, you presented resumes and you had discussions with the RTM as a body and you discussed the qualifications of a variety of people. In this case, we have town counsel saying, ‘it is done, it has nothing to do with you, it is an administrative decision. Forget it. Move on.’

Then he observed that Ms. Marcus had done a great deal of legal research to defend the Morris appointment of John Smith. “Are you billing the town for all this background legal research for John Smith? “he asked.

“I hadn’t really thought about it. It just arose,” she replied. “But yes, I was planning on it,” she said.

Now Walker had heard enough. “The posting for this job was back in December, 2006. Six months ago. And now all of sudden John Smith begins a job on Monday. There are a lot of questions that we would like to know…in reality what on earth is going on here? We don’t want payola. We don’t want more underhanded actions. If John’s the right guy, fine and dandy. I just don’t think that Shelley, as town counsel, as a hired gun, as a salaried person or as an hourly person, should call the behavior of this body shameful and all of our actions political. This is an issue that needs to be addressed,” he said to enthusiastic applause.

The RTM voted 14-6 with two abstentions to send the John Smith case to the administrative services committee. Smith left the room before the vote. Gail Chapman-Carbone, the chair, said she thought the first hearing would be held July 9th at Canoebrook Center.

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