FENWICK ISLAND – Officials agreed to remove two individuals from the list of candidates in this summer’s election because they fail to meet qualifications set forth in the town charter.
Though they were originally approved as candidates, Charlie Hastings and Marc McFaul have been removed from the list of candidates in the town’s Aug. 6 election. Both men were deemed ineligible because they own Fenwick Island property through LLCs and not as individuals.
“I don’t see where we have any choice,” Councilman Gardner Bunting said.
While the town council and the board of elections approved the list of six candidates that was released to the public last week, both groups met Tuesday after questions were raised concerning candidate eligibility. Council member Julie Lee said she was the one who brought up the subject as she was aware that at least one candidate’s claim to property ownership was through an LLC.
According to Mary Schrider-Fox, town solicitor, candidates have to be natural born citizens and residents or property owners. McFaul and Hastings do not live in the town and their claims to property ownership are through two different LLCs. Schrider-Fox explained that an LLC was an artificial entity.
“Because of the LLC ownership, these two candidates fail to qualify the second prong,” she said. “Their LLC is the property owner.”
She said that town staff had consulted her as well as a Georgetown attorney on the matter and both had offered the same opinion.
Audrey Serio of the board of elections said that she still didn’t think the issue was clear.
“To me it’s mud,” she said, pointing out that LLCs were provided with one vote each in Fenwick Island.
She said she thought anyone who could vote could run for council. “The town looks on an LLC as one thing here but over here it’s another,” she said.
Schrider-Fox said that most people in town probably believed that if they had a vote they could run for council.
“The problem is that’s not what the language of your charter says,” she said. “Your list of candidate qualifications are pretty clear.”
She stressed that an LLC was an artificial entity. Though a member of the committee pointed out that certain past council members had only owned property through LLCs, the attorney said that was probably before 2008, when the town’s charter was updated.
“Until last year, you didn’t even have a contested election,” she said. “It’s not some bad move on their part. They just didn’t know.”
Schrider-Fox said that if the candidates weren’t removed and went on to win the election, someone could take the issue to court. At the same time, if the candidates were removed from the ballot, they could challenge the town in court.
“This is a pickle,” she said.
After considering the issue, the board of elections opted to defer the decision to the town council.
“They make the ultimate decision,” Serio said.
In the special council meeting immediately following on Monday, Schrider-Fox again explained why LLC ownership didn’t qualify a person to be candidate.
“An LLC is an artificial entity …,” she said. “Those members don’t own that property, they own an interest in an artificial entity.”
Council members questioned how those who owned property in LLCs could vote in the election but could not be candidates in the election.
Schrider-Fox said that was how it was written in the town charter.
“It might not be what you had in your head but it is clear,” she said.
She said the language of the charter would have to be changed if officials intended to allow those with LLC ownership to file for election.
Councilman Roy Williams asked whether the candidates could remain on the ballot if they took their property out of LLCs. The solicitor said that would have been an alternative if the filing deadline hadn’t already passed.
Resident Lisa Benn said she didn’t understand why the council was still discussing the issue.
“A mistake was made,” she said. “You’ve heard from two attorneys. I don’t understand why there’s such a complicated discussion.”
Councilman William Weistling said the issue was an important one.
Other council members agreed at that point they’d considered the issue as best they could.
“If they want to contest it it’s up to them,” Council member Diane Tingle said.
The council voted unanimously to remove McFaul and Hastings from the list of candidates. There are now four candidates — Gardner Bunting, Vicki Carmean, Kevin Carouge and Bernard Merritt Jr. — for the three available council seats.