It doesn't get any better when the opinion of a attorney rolls out about the conduct of assembly members and it is released to the public. So grab a beverage. We have tamed the legalese to a manageable level for you.
A LITTLE HISTORY..
First let’s travel back in time since that is where we seem to be headed on a regular basis and recall the November 2012 meeting after the election when assembly member Arvin was re-elected. The ceremonial mayor also re-elected needed to choose his deputy ceremonial mayor. His choice was Arvin who had by then returned to his place of employment in China. The defense the mayor has offered up about voters knowing this is just weak. Mr. Arvin's campaign webpage is still available and says nothing about him taking a six month junket if elected.
The mayor was questioned then if assembly member Arvin planned to “be present more often than in the past”. The mayor replied that he “ didn't anticipate Mr. Arvin attending telephonic-ally much longer”. And that was that. Arvin was appointed deputy mayor and still receives the small difference in pay to hold that position which he continues to collect along with his full borough tax payer paid benefit package to date.
Fast forward to this year’s February 26th assembly meeting when Assembly member Keogh requested a third party opinion to determine if borough code had been violated by Arvin’s physical absence for well over the 90 days code states is the time period allowed. Code states that an assembly seat be declared vacant if the member is "physically absent from the Borough for 90 consecutive calendar days and the absence is not excused by the Assembly."
We assume “physical absence" is limited to 90 days, because physical presence entails visual elements that are lost in physical absence regardless of ability to communicate otherwise. Elected assembly members are expected to meet with constituents, attend community council and other meetings, and personally witness neighborhood high drama like unanticipated tall tower erections and houses floating away from eroded river banks. It makes sense that a public servant be physically present to provide that service, apparently sufficiently important to be stated in borough code.
PLAIN TALK OPINION
The Borough requested the outside opinion for guidance as to whether assembly member Arvin was eligible to remain on the Assembly even though this "extended trip” or perhaps a slow boat back from China he has reportedly been on from October 2012 to February 2013.
Interestingly, the opinion assumes (and no one on the Assembly seems to argue otherwise) that Arvin has, in fact, been physically absent from the district for 90 consecutive days and that nothing the Assembly has done has excused that absence. The conclusion to be drawn from those facts might seem to be simple. He must be removed. A vindication of that those watching this drama unfold at the borough knew all along.
But the opinion goes on to consider whether an absence can be retroactively excused. And it concludes it can. Not only that, it concludes that--though the law is unclear--the existing law and the Assembly's own conduct (not to date declaring a vacancy and letting him appear by phone) "weigh in favor of permitting the Assembly to excuse the absence so long as it has not yet issued a declaration of vacancy." You know we will let you go down that street again and this time don't go through the stop sign.
Such a leap of this kind of makes us wonder what instructions the law firm was given when the opinion was requested. It also makes us wonder how many public employees at the borough or anywhere else would get to turn in a leave slip AFTER they took the leave. Excused is something that happens BEFORE the absence. A person does not miss work, for instance, for 90 days and then, when someone notices, request a leave of absence.
Permission to be physically absent is granted BEFORE the fact. Pure and simple. Of course unless your part and parcel of the GOB (good ol' boy) club then you ask for a life line from the ceremonial mayor to announce at the next meeting that he will sponsor a resolution to excuse your absence. Good deal for Mr. Arvin. Not so good for the people he represents or anyone else that wants to try that hat trick and doesn't have a ceremonial mayor in their corner.
If the assembly goes ahead and votes to excuse the absence after the fact, it must decide whether the circumstances warrant excusing the absence. It must consider the reasonable necessity of the absence from and must determine that the absence is not unduly prejudicial to the public. One has to wonder whether it would be embarrassing to elected officials to decide that a fellow assemblyman's absence from his job--a job which they also hold—can be fully done with having to physically attend a meeting. Can they all just not be seated at the table but on giant screens with umbrella drinks and hula girls nearby? How unimportant can you be?
CHASING BOOGY MEN THAT AREN'T THERE...
The little retaliatory tactic assemblyman Colligan in questioning Mr. Keogh’s residency is hardly worth the ink to talk about it and certainly wasn't worth taxpayer money for the hired attorney to earn his fee by filling seven pages.
Although a person can have only one voting address, there is nothing disqualifying in having more than one home or in this case, a home and an office in a condo to avoid the long commute from Chickaloon. And even though we recall the ceremonial mayor has no trouble with allowing people who own more than one piece of property to vote in more than one community council area we are still a one vote, one person borough.
Residency for holding office is the same as for voting. A person can only have one residence for voting purposes. And the address on one's voter registration record is "presumptive evidence of the person's voting residence." A person loses residency if he votes in another district or another state. Mr. Keogh hasn't done that. He resides in Chickaloon and has for many years. Simply owning two residential dwellings is not a disqualifying factor. See we told you …not worth the clean up.
Really. You can’t make this stuff up. Reportedly the mayor will present his resolution to excuse Arvin at the March 19th assembly meeting. It will be interesting to see if Mr. Arvin slaps some more horsepower on that boat from China and makes an appearance. You know the ceremonial mayor will be there ready to save "his man" .