Marini Opinion

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  • C0MMUNICATI0N #L0 - Regular Meetin L3, 201,4

    gttg uf $turniuOffice af the Corporation Counsel

    253 Main StreetAnsonia, Connecticut 06401

    John P. MariniCarporation Counse! Fax: (203) 87E-2235

    Ernail : jnrarirri@anson iact. org

    May 8,2014

    President Philip TrippCity of AnsoniaBoard of Aldermen253 Main StreetAnsonia, CT 06401

    President Tripp,

    Please find attached a copy of my legal opinion regarding the Town and City Clerk's Account. ln additionyou will find a copy of the audit performed by BlumShapiro.

    Mayor David S. Cassetti

    Jo

    ntertvtu F0R FILE

    rh HilI -8 *l.}t

    .fiffiHn il'f_Y],LrH' "inrttsd,!(bt8!1sffi ss+

  • OFFICE OF THE ANSONIA CORPORATION COUNSEL

    Leeal Opinion 2014-2

    Rer City Clerk Account

    This opinion reprcsents the views of the Ansonio Cotporation Counsel at the time itwos rendered, The opinion mdy no longer represent those views it, among other

    things, there have been subsequent court coses ar stdtutary amendments that be* onthe issues discussed in the opinion-

    I have been requested by the Mayo/s Office to render a legal opinion regarding theownership of funds contained in a bank account held in the name of the City of Ansonia

    - Town & City CIerk ("City Clerk Bank Account") for a period extending back at least 14years from December 31, 2013. More specifically, I have been asked to determinewhether the City of Ansonia or the former Town & City Clerk, Ms, Madeline Bottone, is

    the proper owner of the funds contained in the City Clerk Bank Account.

    As of December 31, 2013, the balance in the City Clerk Bank Account was $277,676.

    It ls my legal opinion that the funds in question belong to the City of Ansonia. Thisopinion is not premised on any allegation of illlcit or improper conduct on the part of

    Ms. Bottone. Rather, it is based on the plain language of the Ansonia City Charter andCode, along with relevant sections of the ConnecticutGeneral Statutes.

    The aforementioned authorities establish that; L) fees collected through the Town &City Clerk's Office and deposited into the City Clerk Bank Account are property of theCity of Ansonia; and 2) Ms. Bottone did not comply with the statutory requirements that

    permit a City Clerk to receive a commission on fees collected.

    Notwithstanding the above, Ms. Bottone has already taken an annual commission onfees collected as a supplemental salary for the duration of her tenure as Town & CityClerk. lt is therefore clear that she is entitled to no additional compensation from theCity of Ansonia, and that the funds held in the account belong to the City,

    l. Backsround

    The City Clerk Bank Account was a repository for all fees collected through the office of

    the Town & City Clerk. The account was in the name of the City of Ansonia, though the

    sole signatory on the account was for some time Ms, Madeline Bottone, the Town &City Clerk.

    The Town & City Clerk was responsible for alJ deposits and withdrawals. Funds would be

    deposited into the account and subsequently withdrawn to pay a portion of the fees

  • owed to the State of Connecticut and City ol Ansonia. Connecticut General StatutesSection 7-34a determines the portion of fees due to the State and City.

    Additionat funds were wlthdrawn from the account each year for the purpose of paying

    compensation to both the Town & City Clerk and Assistant Clerk. This annualcornpensation was in addition to the annual base salaries paid to the Town & City Clerk

    and Assistant Clerk. The Town & City Clerk determined unilaterally the amount ofadditional compensation paid to herself and to the Assistant Clerk from the accounteach year. An annual accounting of additional compensation taken from the account

    from 1999 through 2013 is set forth in the report from BlumShapiro dated April 11,2014 and attached hereto asAttachmentA.

    Finally, a sum of $109,244 was withdrawn from the account to fund the purchase of city

    computers (see Alla_c-h{nent A, page 6).

    This City Clerk Bank Account was maintained in this fashion for at [eas! the P!!! 14years. Over that duration of time, the account accumulated a residual balance of funds

    now totaling $277,676. To clarify, the residual balance consists of fees that were taken

    in through the Office of the Town & City Clerk and not paid to the State, the City or to

    the Town & City Clerk or Assistant Clerk as compensation, but kept in the City Clerk Bank

    Account (it should be noted that the account is non-lnterest bearing and non-taxable),

    At no time in the past 14 years did the Town & City Clerk submit reports on fees

    collected or compensation taken to the Ansonia Board of Aldermen or to the Ansonia

    Mayor.

    The Town & City Clerk is presently making a claim to the residual balance owed in the

    account,

    ll. Ansonla Law Directs Fee-q tg the CiW

    a) Ansonia Code and Chorter

    The receipt of money through the Town & City Clerk's Office is controlled by theAnsonia City Charter, Sec. 25, and the Ansonia City Code, Sec.2-32. Those sestions state

    clearly that fees collected by the Town & City Clerk's Office are to be paid to the City of

    Ansonia via its Treasurer:

    Ansonia City Charter, Sec. 25. Powers and duties of town clerkgenerally.

    The town clerk shall have and perform all the powers and dutiesrequired by the statute laws of town clerks in this state, and may

    appolnt an assistant as provided for by statute law. He shall also be the

    city clerk of said city, and also be clerk of the board of aldermen, and

  • shall make and keep true records of all the votes and proceedings of

    said city and of said board. He shallcause the ordinances of said cityto

    be published according to law, and when so pubtished, shall entdr upon

    the records his certificate thereof. He shall make entries upon saidrecords of his own acts in serving notice of orders passed by the board

    of aldermen. He shallalso keep a record in a book kept forthat purpose

    of all notices required to be given by this act, together with the return

    of the person who served the same. He shall do and perform all such

    duties as may be required of him by this Act, or by any vote of saidboard of aldermen or ordinances of said city. He shall also issue over his

    signoture such licenses and permits as may be grunted by sald board,

    and prescribed by the Charter oJ said city, and shall make a recard

    thereof in a book kept lor that purpase, shall collect the moneytherefor, and shdll pdy over the moneys received ta the treasurer of

    said city within the lirst three doys ol each month. He shall record all

    amendments to this Charrer and ordinances passed by the board of

    aldermen, in a book kept for that purpose. [Emphasis added]

    Ansonia City Code, Sec. 2-32. Receipt, etc', of moneY for city,

    The city clerk shall enter in a book to be provided for that purpose the

    names of all persons from whom he may receive money for the city, the

    time when received, the amount so received and the object thereof,

    and shall render a faithful and distinct account thereof of all suchmoneys to the board of aldermen monthly, and pay over the same to

    the city treasurer prior to the making of such reporl.

    The aforementioned provisions of the Charter and Code appear to defeat any argument

    whereby the Town & City Clerk would be allowed to make a personal claim to anyportion of fees collected. lndeed, Code Section 2-32 is entitled "Receipt, etc, of money

    for city," leaving little room for creative interpretation. [Emphasis added] The same

    language is repeated within the substance of the section itself.

    The intention of the Charter and Code is further clarified in the requirement for the

    Town & City Clerk to submit a month)y accounting to the Board of Aldermen, lt is clear

    that the drafters intended a system whereby funds were collected for the City and

    placed under the oversight of Ansonia's elected aldermen.

    For the past 14 years, in direct contravention of the plain language of Section 25 of the

    Charter, the Town & City Clerk has not paid the monies collected to the City Treasurer'

    Rather, funds collected have been deposited directly into the City Clerk Bank Account by

    the Town & City Clerk and then withdrawn for the purposes of reimbursing the State,

    City and ernployees of the Town and City Clerk's Office. Further, the Board of Aldermen

  • has not been provided with a monthly accounting of monies deposited into orwithdrawn from the account at any time within the past 14 years, resulting in acomplete absence of the oversight intended by the Charter and Code,

    On the basis of Ansonia law alone, it can be concludedthatfunds taken in through the

    Office of the Town & City Clerk are the property of the City of Ansonia.

    b) Account in Nqme of the city

    tn examining the surrounding factual circumstances, it is important to note that the City

    ClerkBankAccountwasapublicaccountheldinthenameoftheCityofAnsonia. Public

    bank accounts are not properly used as repositories for an individual's private funds or

    savings, Funds deposited into the account {and allowed to accumulate in the accountfor a period of 14 years) are property of the City of Ansonia.

    This is bolstered by the fact that funds were taken from the account to fund asubstantial municipal expense: $tOg,Zq+ was transferred to fund the purchase of city

    computers (see Attachmqnt A, page 6). The account known as the "City Clerk Account"

    not only was and is