By John Schwing

WESTPORT — TJ Elgin, the Libertarian first selectman candidate who received 64 votes in the Nov. 2 election, has filed a lawsuit that demands he be appointed to the open minority-party seat on the Board of Selectmen.

In the lawsuit, filed Nov. 16 at state Superior Court in Bridgeport, Elgin continues to press his claim to the “third” selectman’s seat, which was turned down by Jonathan Steinberg, the Democrat who narrowly lost the first selectman’s race to Republican Jennifer Tooker, who was sworn in as the town’s new first selectwoman Monday.

To read the complete documents filed in Superior Court, click here.

Elgin and his running mate Louis D’Onofrio finished far behind the winning Republican team of Tooker and her running mate Andrea Moore, who received 4,237 votes, as well as Steinberg and running mate Candice Savin, who got 4,168.

Elgin was not immediately available for comment.

Town charter interpreted differently

Elgin, in the lawsuit, continues to stake his claim based on his interpretation of the  town charter’s “Code of Ordinances of Westport, C4-1,” which reads:

“The candidate for First Selectman having the highest number of votes shall be elected First Selectman, and the candidate for Selectman combined with the elected First Selectman on the ballot or machine [i.e., the first said candidate’s ‘running mate’] shall be elected a Selectman. 

“The defeated candidate for First Selectman having the highest number of votes shall be elected a Selectman.”

Since Steinberg, in a letter filed with the Town Clerk’s office last Friday, formally said he would not serve as third selectman, Elgin contends that he is now the first selectman candidate with the next-highest vote total, and is entitled to the post.

He also takes issue with the Town Attorney office’s statement that, with Steinberg passing on the seat, a vacancy exists and that seat should be filled by the Board of Selectmen’s Republican majority — Tooker and Moore.

In a letter to then-First Selectman Jim Marpe, Town Attorney Ira Bloom wrote last Friday, “There is no provision in the Charter section that awards any other defeated candidate the office of Selectman. Rather, if the “defeated candidate … having the highest number of votes” declines service, as Mr. Steinberg has done, a vacancy is created in the Board of Selectmen.

“Mr. Elgin has no claim to be a Selectman under this Charter section,” Bloom wrote.

In terms of filling the vacancy, the Town Attorney’s office has said the Republican selectwomen are required to appoint a Democrat, as was Steinberg. However, they do not necessarily need to appoint a Democrat that the Democratic Town Committee might nominate. 

The town committee, in fact, is scheduled to recommend a Democratic appointee at a special meeting Wednesday night.

Can Steinberg “resign” from a seat from which he was not sworn in?

Elgin’s lawsuit, which names Town Clerk Jeffrey Dunkerton as the respondent, also contends that since Steinberg was never officially sworn in, he could not formally resign from that office. Therefore, he argues there is no “vacancy” as interpreted by the town attorney.

It states: “On November 15, 2021, Defendant [Dunkerton] did not swear Plaintiff [Elgin] in as third selectman, and to this date has not made any effort to do so.” And, it further contends: “Defendant’s aforesaid behavior was in error because Steinberg never assumed office; therefore, there is no vacancy, but rather the aforesaid ordinance designates Plaintiff [Elgin] as the candidate duly elected.”

The suit asks the court to order Dunkerton to certify Elgin’s election to the Board of Selectmen, and that he be reimbursed for all his legal expenses in the case.

Elgin is represented in the case by Andrew Knott, a lawyer based in Cheshire, who was not immediately available for comment.

No comment yet; lawsuit not officially filed with town

Dunkerton, who must receive a copy of any lawsuit against the town for it to be legally filed, had not received a copy of Elgin’s legal action as of noon Wednesday.

“I have not officially received anything … Every lawsuit against the town must come first to the Town Clerk’s office,” Dunkerton said.

Even though a marshal had not yet served the town with the lawsuit in the Town Clerk’s office, Bloom and his staff began reviewing the copy that he received Wednesday morning. They must first check that the lawsuit is served and filed properly, Bloom said, before moving on to respond to the allegations in the suit.

“We’re reviewing it carefully,” the town attorney added. “We’ll be conferring about it later in the day.”

Both Bloom and Dunkerton refrained from any other comments about the lawsuit.

With additional reporting by Gretchen Webster.