Councilor Kearns appeals Board of Elections ruling on Scullin

Councilor Kearns appeals Board of Elections ruling on Scullin

CUMBERLAND - Town Council member Jeff Kearns has a Sept. 10 date with the Rhode Island Supreme Court where he's hoping to reverse a state Board of Elections decision that's allowing Jim Scullin of Carlson Drive to run for two positions in Cumberland: Kearn's District 3 Town Council seat and an at-large seat on the town's first Cumberland Fire Committee.

Kearns, a Republican freshman Town Council member, finds himself challenging the elections board after Scullin's move to run for both the council and fire seats was denied by the local Board of Canvassers, but upheld by the state board that found the new Fire Committee doesn't meet that definition of a public body and so isn't subject to the law that bars dual office holding.

Kearns' appeal, in the form of a writ of certiorari, is a request for the Supreme Court to examine the record to see if an error of law was committed by the state Board of Elections when it ruled on July 9 that Scullin's name can appear twice on Cumberland's November ballot.

Kearns, who lives on Highland Avenue, says he thinks the decision will likely hinge on whether serving on the seven-member Fire Committee makes someone a public officer as are members of the Town Council or a state senator, for example.

Any arguments that it's not a public office, he argues, "are just a question of semantics."

Representing Kearns is attorney Brandon Bell of Cumberland, who told the court in his filing that the legislation creating the new Fire Committee is "plain and unambiguous" and is a public office "in every aspect the test enumerated" in the 1984 case of Gelch v. State Board of Elections.

"The meaning of the word office not only includes the entitlement to a salary and the right to exercise certain powers, but also includes a fixed period for which the office may held," Bell said.

Freshman state Sen. Ryan Pearson took the lead on the 2013 legislation that consolidates Cumberland's four fire districts and creates a single governing body patterned after the School Committee, with nonpartisan members elected in November with one from each of the five Town Council districts and two from the town as a whole, or at-large.

He told The Breeze this week, "The intention was not to allow dual office holding and that the Fire Committee is absolutely a public office."

Said Pearson, "Case law asserts a three-prong test to determine if an office is a public office, and this instance meets all three tests. I believe the board of elections was in error in their decision and the Supreme Court will find that the Cumberland Fire Committee is a public office."

Scullin, a Democrat who's chairman of the Valley Falls Fire District, argues the new fire board isn't much different than the district fire boards. Over the years, he's run for Town Council and General Assembly while serving on the fire board.

Scullin argued before the Board of Elections that the new Fire Committee "doesn't report to the town. It has its own taxing authority. It sets its own budget, and it has nothing to do with the town of Cumberland except it provides public safety to the residents of the town in which they pay the independent board for on a separate tax."

But Kearns told The Breeze he sees a multitude of conflicts of issue with one person sitting on both the council and fire board, starting with the Water Department's controversial imposition of hefty hydrant fees on fire districts.

"How could he possibly serve both effectively?" said Kearns.

This town's first election of Fire Committee members sees 12 candidates certified to run - four at-large (counting Scullin) and races in Districts 1, 3 and 5.

Defending the state Board of Elections is attorney Raymond Marcaccio. His arguments begin with strong criticism of Kearns' failure to attend either the town or state hearings on Scullin's appeal, saying, "Petitioner has sat on his right and failed to appear or raise any legal challenge" when this case was heard first by the Cumberland Board of Canvassers and then state Board of Elections.

Kearns told The Breeze both hearings came up quickly and he was notified of neither.

Looking at the larger issue, Marcaccio says that while R.I. General Laws Title 17-14-2 bars a person from being a candidate in two races, whether state or local, "the office of Fire District does not constitute a public office for purposed of Title 17 of General Laws."

Marcaccio, who calls the Cumberland Fire District a "quasi-public corporation," said that when the General Assembly created the new Fire Committee, it specifically called for the state Board of Elections and town Board of Canvassers to "administer" the election rather than "govern" the committee's election, or require the committee to "comply" with their laws.

He points to elections of fire boards across the state that don't follow Board of Elections rules and says that barring candidates for Cumberland's Fire Committee from running for state or local office is a violation of the Equal Protection Clause of the United States. "It is constitutionally suspect to exclude those who reside in the consolidated Cumberland Fire District from the general right that any person in Rhode Island has to simultaneously run for both a local or state office and a local fire district seat."

The Sept. 10 court date, a day after the party primaries, leaves Kearns in the position of having to campaign as if he has an opponent, something he says he did two years ago even when running unopposed.

He did note he's still knocking on doors on weekends.

The Sept. 10 timing isn't an issue for the election because his race with Scullin, if there is one, is on the November ballot, as is the Fire Committee ballot.