Appointment of Police Chief to Hinge on Definitions of "Elector" and "Bona Fide"

The selection of a police chief in town didn't use to be so complicated.

But choosing the successor to Police Chief David Peck, who retired last month, is difficult because the Town Charter requires a police chief to become an elector (registered voter) in Fairfield within six months of taking office, and none of the three candidates for police chief live in Fairfield.

Also, the defintion of what makes someone an "elector" appears to be open to interpretation, and town officials have asked the Secretary of State's Office for guidance.

Acting Police Chief Gary MacNamara, who would seem to be next in line to be police chief based on his job title, lives in Bethany, while Capt. Christopher Lyddy and Capt. Donald Smith also don't live in Fairfield.

First Selectman Ken Flatto said Wednesday that it wasn't realistic to open the Town Charter to change the residency requirement for a police chief since the process of amending the Town Charter and getting it approved by voters in an election could take well over a year.

The Town Charter was last amended in November 2006. At that time, Peck, a lifelong resident, was police chief and three of the four captains who would seem to be next in line to be police chief - Robert Comers, Paul Dyer and Edward Filush - lived in Fairfield. MacNamara was a captain when the Town Charter was last amended.

The police department was reorganized following November 2006 and instead of having four captains, the department had a deputy police chief and two captains. Comers, Dyer and Filush have all retired.

The Town Charter says the police chief will be chosen from among the three highest-scoring candidates who took a competitive exam to be chief of police. The town's Police Commission votes on who the next police chief will be, but its choice requires approval from First Selectman Ken Flatto.

Finding the requirements to be an elector isn't easy.

The Secretary of State's Web site refers visitors to the Connecticut Constitution, but the state constitution doesn't explicitly say what makes someone an elector.

Article Six, Section 1 of the state constitution was amended in November 1976 to read: "Every citizen of the United States who has attained the age of eighteen years, who is a bona fide resident of the town in which he seeks to be admitted as an elector and who takes such oath, if any, as may be prescribed by law, shall be qualified to be an elector."

Article Six, Section 2, which also deals with electors, states: "The qualifications of electors as set forth in Section 1 of this article shall be decided at such times and in such manner as may be prescribed by law."

It would seem that deciding what makes someone an elector first requires a determination of what makes someone a "bona fide resident."

Av Harris, a spokesman at the Secretary of State's Office, furnished Fairfield Patch with the definition of "bona fide resident" that he said had been used by the Secretary of State's Office for about the past 25 years.

The definition furnished by Harris states that the bona fide residence of an individual is "his fixed home or fixed place of abode to which, when he is temporarily absent, he intends to return, provided that if he relinquishes his dwelling place in a town during a period of temporary absence, with the present intention of returning to that town at the end of the absence, then that town where he formerly lived is his town of bona fide residence during that period of absence."

It would seem, based on that definition, that someone couldn't simply rent an apartment in Fairfield, and maintain a primary residence elsewhere, to become an elector in town.

But the document furnished by Harris follows with a section, headed "Residence - Students," that is more flexible. Language in that section, which quotes excerpts from a 1972 court case in New London County that quoted court decisions from other states, includes non-students as well.

That section of the Secretary of State's document says: "A student, and a non-student as well, who satisfies the...residence requirement may vote where he resides without regard to the duration of his anticipated stay or the existence of another residence elsewhere." (ellipses in original.) It is for him alone to say whether his voting interests at the residence he selects exceed his voting interests elsewhere."

"The only constitutionally permissible test is one which focuses on the individual's present intention and does not require him to pledge allegiance for an indefinite future. The obligation is to determine the place which is the center of the individual's life, the focus of his primary concern."

Paige Adams, a spokeswoman at the state Elections Enforcement Commission, indicated that bona fide residence wasn't easy to define.

"Bona fide residence is a very fact specific question, I'm told, and very mixed on questions of facts and law, and [there are] many, many, many, many cases on bona fide residence as well as other legal research," Adams said.

Roger Autuori, the Republican registrar of voters, said people who come into the Registrar of Voters' Office in Old Town Hall to become a voter in town have to provide evidence that they live in town. Such evidence could include a driver's license, utility bill or bank statement, Autuori said.

"Any sort of thing that says 'This is your residence.' That's what we need...It doesn't matter where the rest of the family lives. It matters where you are," Autuori said.

Autuori said the applicant would have to provide the address of the town in which he or she used to live so the applicant could be removed from the voting rolls in that town.

Autuori said the Registrar of Voters' Office doesn't get involved with determining what makes the applicant "a bona fide resident of the town" or investigating whether the person is a "bona fide resident of the town."

"That's where the lawyers come in...If somebody wants to make trouble, there's always ways to make trouble," he said.

The Fairfield Registrar of Voters' Office would only remove a person from the voting rolls in Fairfield if the acceptance letter came back from the post office as undeliverable, Autuori said.

The question of what makes someone an elector and bona fide resident in town is relevant to the selection of the next police chief because that person theoretically could try to claim residency in Fairfield, and eligibility as an elector, by renting an apartment in town.

Town officials said they expect to hear back from the Secretary of State's Office early next week.