C0MMUNICATI0N #L0 - Regular Meetin L3, 201,4

gttg uf $turniuOffice af the Corporation Counsel

253 Main Street

Ansonia, 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

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This opinion reprcsents the views of the Ansonio Cotporation Counsel at the time itwos rendered, The opinion mdy no longer represent those views it, among other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

the issues discussed in the opinion-

I have been requested by the Mayo/s Office to render a legal opinion regarding the

ownership 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 14

years from December 31, 2013. More specifically, I have been asked to determine

whether 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. This

opinion 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 and

Code, 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 the

City 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 on

fees collected as a supplemental salary for the duration of her tenure as Town & City

Clerk. lt is therefore clear that she is entitled to no additional compensation from the

City 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 Statutes

Section 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 annual

cornpensation 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 of

additional compensation paid to herself and to the Assistant Clerk from the account

each 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!!! 14

years. 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 the

Ansonia 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 clerk

generally.

The town clerk shall have and perform all the powers and duties

required 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 said

records 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 said

board 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 money

therefor, 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 such

moneys 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 any

portion 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 or

withdrawn from the account at any time within the past 14 years, resulting in a

complete 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 account

for 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 a

substantial 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 held in the name of the City of Ansonia, but also it is operated as a,

city account.

1ll, No AuthgrilYfrom State Statute

The relevant provisions of the Connecticut General Statutes support the conclusion that

the residualfunds held in the account are the property of the City of Ansonia'

Connecticut General Statutes Section 7-34b is the appticable statutory authority in that

it governs municipalities that have elected to compensate their clerk's by salary in lieu

of fees, as Ansonia has done with the relevant sections of its Charter and Code. lt atso

sets forth an accounting requirement that governs all fees collected by town clerks on

behalf of the municipatity.

Sec. 7-34b. Accounting of fees required. Salary ln lieu of fees.

(a) The clerk of each municlpality shall, at the end of each fiscal year of

such municipality, give an accounting of all fees and compensation

provided by the general statutes to be paid to the clerk to the legislative

body of such municipality. The record of such accounting shall be a

public record, as defined in subdivision (5) of section 1-200.

(b) Any town rnay, by ordinance, provide that the town clerk shall

receive a salary in lieu of all fees and other compensation provided for

in the general statutes, which salary shail be fixed by the tegislative

body of such town. Upon the adoption of such ordinance the fees or

compensation provided by the general statutes to be paid to the town

clerk shall be collected by such town clerk and he shall deposit all such

money collected by him in accordance with such provisions of law as

govern the deposit of moneys belonging to such town,

Ansonia Charter and Code create a system that specifically directs monies collected by

the clerk to the City and therefore pre-empts a commission-based compensation system

for the Town & City Clerk. This is consistent with the fact ihat the Ansonia clerk receives

a city salary, as contemplated by C.G.5. Section 7-34b{bi.

The Charter leaves no doubt that a city official's salary is intended to be taken in lieu of

all other compensation. Charter Section 133 plainly states that "all salaries shall be paid

in monthly installments by orders drawn on the city treasurer and shall be in lieu of all

other compensation for any services required or salaried officials under the provisions

of this act except as hereinafter specified."

Sec. 133. Salaries of city officials,

Any provision of the city Charter or ordinances to the contrary

notwithstanding and subject only to the provisions of the statutes or

Constitution of the State of Connecticut, the salaries of all city officials

and employees, may be established or altered at any time by resolution

of the board of aldermen, Atl salaries shall be paid in monthly

instailments by orders drawn on the city treasurer and shall be in lieu

of all other cornpensation for any services reguired or salaried officials

under the provisions of this act except as hereinafter specified.

lEmphasis addedl

Pursuant to C,G,S. Section 7-34b{b), the clerk is bound to follow the "provisions of law

as govern the deposit of moneys belonging to such town." As discussed in detail above,

the Charter and Code basically mirror the language of General Statute 5 7-3+b(b) by

directing the Town & City Clerk to promptly pay to the Treasurer all fees collected for

the issuance of license and permit fees, and to file monthly accountings with the

Ansonia Board of Aldermen.

Notwithstanding the above, the Town & City Clerk has not complied with the provisions

of C.G,S. Section 7-34b that periain to clerks being compensated by fees. C.G.S. Section

7-3ab(a) requires such a clerk to "give an accounting of all fees and compensation

provided by the general statutes to be paid to the clerk to the legislative body of such

municipality." No such accounting has been made inthe past 14 years. This establishes

that, even in the absence of an ordinance establishing salary in lieu of all fees, the Town

& City Clerk would be ineligible to collect a fee-based commission.

IV. Annual_Commission on Fees Alreadv Taken

lf the city was to overlook municipal and state authority and conclude (improperly) thatits clerk was entitled to a fee-based commission, it is st,ll apparent that the residual

funds contained in the account are the property ofthe City ofAnsonia,

lrrespective of the authority and analysis set forth above, the cierk has taken an annual

compensation from fees deposited into the account for the past 14 years. That annual

compensation (already taken) represents the maximum compensation that the Ansonia

clerk could ever be entitled to.

lndeed, C.G.S. Section 7-34b(a) requires an onnuol accounting of compensation taken,

and therefore contemplates a system where compensation is taken on an annual basis,

Moreover, Ansonia Charter Section 133 specifics that salary must be paid in monthly

installments. lndeed, to conclude otherwise would be to allow a city employee to utilize

a public bank account for the purpose of storing personal savings for over a decade.

Conclusiorl

Review of relevant municipal and state authority firmly establishes that the residual

funds contained in the City Clerk Bank Account belong to the City of Ansonia.

May 1,2014

John P. Marini, Esq.

Corporation Counsel, City of Ansonia