Every vote counts, a fact made clear last week when two candidates tied in a race for New Windsor Town Council -- a first in the town's 155-year history.
The development nonplussed officials when they discovered that nothing in the town charter addressed such an outcome.
Wednesday night, the Town Council voted 3-1 to resolve the tie by choosing incumbent Paul Garver over challenger Samuel Pierce.
"Everyone would have preferred a runoff election, but the law doesn't let you do it," said Mayor Jack A. Gullo Jr. "Who wanted to have to deal with this? Everyone knows everyone else, and everyone knows the personalities involved."
It was an uncomfortable situation for the council to choose between the two men in the close-knit town of 1,200. According to the Maryland Municipal League, other cities and towns in the state could be placed in a similar position: Few have anything in their charters addressing a tie vote.
"I suspect there are many cities and towns that have read about us and will be amending their charters," said Michelle Ostrander, assistant town attorney.
Since a challenge in 1911 in Maryland, the courts have upheld that in the case of a tie, no one is elected, and a vacancy results, said Ostrander.
A town has the authority to specify in its charter that a tie should lead to a runoff election, but the New Windsor charter doesn't mention this possibility. It does, however, say that any vacant positions are filled by a vote of the council. The only question was whether this was a vacancy, the same way it would be if a council member died or resigned midterm.
Four lawyers independently concluded that the tie constitutes a vacancy, and the town charter requires that a vacancy be filled by the council.
William MacDonald, representing Pierce, disagreed, as did Councilman Neal Roop, who cast the only no vote against the appointment.
"Our forefathers, I don't think they pictured a tie vote," Roop said. "Maybe they pictured someone passing away."
Saying the case involved the core of democracy, Gullo called in big names, lawyers from Baltimore and Annapolis: Neal M. Janey, an expert in municipal law, former Baltimore city solicitor and district court judge; and Paul Garvey Goetzke, Annapolis city attorney who also has handled several election law cases in his private practice.
They agreed with Ostrander and Marker Lovell, who has been town attorney for 37 years.
That left four council members in the uncomfortable position of choosing publicly between two men.
Garver, the one they chose, had served with the council and ran as a team with two of the men who voted for him. He recused himself from the vote and from all discussions and the brief closed session.
"The sad thing is, there's probably someone sitting back and feeling sorry they didn't get out and vote," Garver said. "And this thing would have been resolved."
Roop was against putting the decision in the hands of the council.
"I know I'm going against four attorneys [by] saying we have the right to have [a runoff] election," Roop said. "It's the right thing to do."
Pierce was dismayed by the outcome.
"Democracy took four big steps backward in New Windsor tonight," Pierce said after Garver was appointed. "It was an orchestrated thing by the mayor."
Pierce has come close to public office before. He lost to Gullo by 12 votes in the mayoral election in 1997.
The tie raised legal and philosophical questions and democratic principles. Three seats were open on the council. Two incumbents placed first and second with 230 and 182 votes, but Garver and Pierce each got 178 votes.
A check with the town charter was no help. It does not mention a tie. The state constitution addresses ties, saying they go to a runoff election, but that does not apply to municipalities, said Kevin Best, manager of research and information for the Maryland Municipal League.
"I think Mayor Jack Gullo and the council got sound advice," Best said.
Ties, he said, are not common and most municipalities in the state have no provision for them.
But some do, such as Eagle Harbor in Prince George's County. Eagle Harbor, population 45, is the state's smallest municipality. It has provisions for a tie. So does Gaithersburg, which says a tie leads to a runoff election and accounts for a tie in the runoff, Best said. In that case, an official flip of the coin is conducted -- referred to as "casting lots" in formal charter language.
A similarly thorny situation nearly came up about 20 miles to the north, in Taneytown, this month.
Henry Heine, a councilman, was running unopposed for mayor. But W. Robert Flickinger, the departing mayor who chose not to run again, got nearly as many write-in votes. He said if he had gotten a majority of votes, he would have claimed the seat.
Boyles said if that had happened, the council would have had to choose a mayor. Heine and Flickinger would have been ready to challenge in court whatever decision was made.
The Taneytown charter doesn't have a provision for a write-in candidate to win: A candidate is not valid if he or she does not follow the registration and petition procedures before the election.
Best said that the state constitution provides for write-in votes, but again, it doesn't apply to municipalities.
Taneytown also has no provision for a tie. City Manager Chip Boyles said the council will look into those possibilities during a review of its charter that is under way.
"It would create a controversial situation here, just as it did there," Boyles said, after having breakfast with Gullo the morning after the vote.
Gullo said the charter will address the way to resolve a tie before the next election.
"This is something we're going to address so we never, ever have this problem again," he said.
Pub Date: 5/21/99