ROWLEY – Judge Richard Welch handed down the ruling yesterday that denied the request by Water Commissioner Timothy Toomey for a preliminary injunction to stop the Feb. 2 recall election.

After listening to both sides of the case on Thursday at Newburyport Superior Court, Welch said he would render a decision within the next couple of days, as time was getting close to the recall election date. In his ruling on Friday, the judge said that “any technical defect in the recall procedure has not prejudiced the plaintiff” and that when the errors were pointed out, the town clerk quickly rectified the problem. 

“In this situation, where there is a legalistic deficiency that was quickly corrected and no showing of bad faith or fraud, there is no reason for an unelected judge to interfere with a democratic vote,” he wrote.

Toomey, with legal representation by William Moschella, filed suit against the town last month with the hope of ceasing the recall election that has the goal of removing him from his position as a water commissioner. 

According to Moschella, the town erred when it collected the first 100 signatures needed to start the process of the recall, by not adding the word “affidavit” to the petition. Also missing were the words “signed under the pains and penalty of perjury on this ___ day of November, 2015.” The petitioning group, under the advisement of town counsel Tom Mullen, went out and collected 100 signatures again on a petition that included those words.

In court, Moschella maintained that the town had botched the recall process and shouldn’t benefit from this error, but instead should begin the recall process again.

The recall was sought by a concerned group of citizens who cite several issues against Toomey, including his decisions to use executive sessions rather than public meetings to approve new policies. During these sessions decisions were made to place the water superintendent on leave, to hire outside temporary oversight of the water department, and to hire an investigator. 

More than 1,300 certified signatures were secured on the recall petition, presenting Toomey with the invitation to resign, which he denied and instead filed suit against the town.

In the recall election, Toomey will face opponent Mark Emery, a lifelong Rowley resident, former water department employee and current firefighter in town. The election will be held from noon to 8 p.m. on Tuesday, Feb. 2 at St. Mary’s Church Hall on Main Street.

 

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