One hundred percent of what I know about the recent appointment of Emily Hurd to the City Council is from the January 14 issue of The Rye Record, review of the January 5 Council meeting, review of Rye’s laws, and an understanding of the legal difference between “residency” and “domicile”.
I don’t know Emily Hurd but, by all reports, she is a good person, a concerned citizen, and, if eligible, would make a good councilmember. (She was elected to the City Council in 2015, served one term, and did not run for reelection.)
The issue of her residency, which determines her eligibility to serve on the City Council needs to be determined, both as a matter of governance and, more importantly, the operations of the city. If Hurd is ineligible and she joins in a 4 to 3 decision, the decision can be overruled. If she, as deputy mayor, signs something purportedly binding the City, it’s no good.
Any decision, any input from her on any issue, will be subject to review.
Rye’s laws say, in pertinent part, “No person shall be eligible to hold an elective… office unless at the time of his election he… shall have resided in the city for at least one year prior to his election.” (emphasis added).
The statute goes on to say: “If a vacancy shall occur in the office of…Councilman, the Council shall… appoint a person to fill such vacancy.” (emphasis added).
To recap, in brief, the mayor nominated Emily Hurd to replace Rich Mecca as a Councilman and the Council voted in favor of the appointment.
Resident Suki van Dijk called in to challenge Hurd’s eligibility, saying she had not lived in Rye for the past year, had rented out her home, and had enrolled her children in the local schools where she was living.
Cohn apparently accepted van Dijk’s comments as correct but responded: “We don’t think Emily is ineligible…We don’t think she changed her domicile. This is an appointment, not an election.” (emphasis added)
Before any further discussion, the dialogue ended.
Cohn was apparently confused or unaware of the difference between domicile and residency — different concepts with different tests.
“Residency” boils down to where you are living at a particular point in time, where you put your head down at the end of the day. Proof is relatively easy, e.g. rent or own, voting, schools if you have children, church attendance, etc.
“Domicile” is what you consider your home. For example, if I grew up in Rye and relocated to Chicago for five years, but I want to go home to Rye at some point, Rye is my domicile, but I am a resident of Chicago, not Rye.
Fact is for most people “domicile” and “residence” are the same, but, though related, they are independent concepts.
Rye’s laws do not speak of domicile but are focused on residency, which makes sense. Rye may be my domicile but, if I haven’t lived there for 20 years, I’m probably pretty out of touch with the community and its needs.
Seeking to bolster the case for Hurd by drawing a distinction between appointment and election, in my view, makes no sense. By parity of reasoning, Cohn could argue for the appointment of Antonio Brown to take Rich Mecca’s place.
The issue isn’t how one gets to sit on the Council, elected or appointed, the latter obviously designed to deal with vacancies, but rather eligibility, which requires residency.
Next steps.
First, Hurd, not knowing of the domicile/residency issue, may have been blindsided when approached, making the perfectly logical assumption that Cohn would not have offered her the slot unless she were eligible. In fairness, Cohn may not have known she’d relocated if, in fact, she had.
If, in fact, Hurd has not been a “resident” of Rye, as distinguished from a “domiciliary”, for the last year (and she’s the person best able to make that decision), she should resign.
If she does not resign after review, having concluded she was a resident and so eligible to serve, it probably makes sense to have input from a blue-ribbon public committee to review the facts.
Then, Corporation Counsel Kristen Wilson should review the facts and give the City her opinion as to Hurd’s eligibility, making her decision and analysis public.
If, after review, Wilson rules in favor of Hurd’s appointment and someone takes issue with her decision, he or she can then sue to have the City’s decision overruled.
Bottom line, Hurd’s residency, and so her eligibility, is a factual matter of relatively easy determination.
If Cohn made a mistake — either as to the law or the fact of Hurd’s actual physical location over the past year — we’re all human and mistakes can be corrected.
However, I believe his treatment of Suki van Dijk was wrong. It appears a concerned citizen raised a legitimate question, and Cohn responded, apparently erroneously, and dismissed her, autocratically, with no follow up.
The Council, and Mayor Cohn in particular, should be more responsive to the community and its views.
- Gerry Seitz
