Trustee spouses denied vote as Fenwick ends voter discussion

Fenwick Island election laws will not change significantly anytime soon. The town council has decided not to extend voting rights to anyone married to individuals who own their property in trusts.

In August, the council put the brakes on a proposed voting ordinance what would have allowed spouses of trustees to vote but also limited the number of other non-resident property owner voters per house.

Just getting to that first reading (now rescinded) took about two years, starting with the hot-button summer election of 2015.

“Before 2008, trustees were treated as people,” said Councilwoman Julie Lee. They were considered freeholders who owned their property in trust. Fenwick’s original charter allowed any freeholder and their spouse to vote.

But Fenwick updated its election rules in 2008, cleaning up language and addressing some other issues when the State of Delaware changed municipal election law statewide.

Since there were no contested elections until 2015, no one realized the scope of the changes until then. They were startled to find that trusts are now specifically labeled as an “artificial entity,” which still only allows each trust one vote.

In a trust, the trustee holds property for the benefit of a beneficiary. The land isn’t held “free and clear” as would be the case with a deed with a person’s name on it, said Town Solicitor Mary Schrider-Fox.

“I hope we can find some way to reinstate the votes of the trustees and spouses of trustees who lost their votes in 2008,” Lee said.

But Schrider-Fox had found holes in the recent proposal that would have allowed two votes per trust and four votes maximum per property with non-resident owners.

With so many unanswered questions, some council members, including Bernie Merritt, backed away from supporting the charter change. Multiple parties can own a property. What happens when three siblings inherit a house, and two people put their shares in a trust? If there are different rules for different types of ownership, which rule prevails? The council needed to offer more direction.

Councilwoman Vicki Carmean said recent elections have become a “convoluted game … see how many people you could get in your household to vote,” with angry conversations throughout.

But Town staff will always have to analyze the citizens’ claims to the right to vote.

“As long as you have non-resident property owners and different entities that can vote, that’s something your Town staff will always have to do,” Schrider-Fox said.

In fact, Town staff usually do the research — despite municipal law stating that it places the burden of proof on the property owner — because a number of property owners have berated Fenwick staff for trying to enforce that provision.

So, as a matter of convenience and because the cost isn’t terribly high, they research the deed with the attorney’s help. (She’s now teaching Town staff to access those electronic records rather than rely so heavily on her.)

“We review the deeds to see how the property is titled because that’s what we care about. … We don’t review the trusts,” Schrider-Fox said. “Most of the time, people want to keep their trust documents quite private, actually.”

Many people don’t know how their own trust is organized, since they simply ask their estate lawyer to set up the best solution.

Sometimes potential voters are surprised to learn that each person has their own trust (and therefore their own votes) rather than all sharing one trust, which only gets one vote.

In Fenwick Island, 34 non-residents are registered to vote on behalf their trusts. There may be more non-residents who would like to participate, just as there are non-residents who maintain a vacation home there but don’t bother much with town business.

Lee said she doubted people would go to the legal expense to adjust their deeds or trusts to sway an election.

“No matter what set of rules you have, if you allow non-resident property owners to vote, people could … manipulate the system to gain an advantage,” Schrider-Fox said.

When a resident flat-out asked her for her own opinion, the attorney didn’t offer the council an easy way out.

“That’s not my job,” said Schrider-Fox. Citizens have already elected council members to act in the best interest of the Town. “My job is to vet what you want to do. … I think my role is to look at the language and see some obvious holes that people could poke through and deal with that.”

But when it comes to predicting how Delaware General Assembly might receive such as proposal, she said she had no clue. The State hasn’t seen something like this before, and it could be precedent-setting.

In a straw poll this week, the council chose to stop pursuing the topic.

Councilman Richard Mais said he fundamentally believes only legal residents should vote. But he tolerates the current law and hasn’t heard anything better. Councilman Bernie Merritt and Mayor Gene Langan were also ready to end discussions.

Councilman Gardner Bunting said he preferred to stop discussions until a better proposal comes along. Previously, he had been the swing vote who allowed the council to even have this week’s workshop, but now, he said, “I tend to agree with Richard. Until we hear something better, I’d like to stay where we are.”

Carmean said she wanted to pursue trustee-spouse voting, having promised other citizens and friends to support it. Councilman Roy Williams also supported trustee-spouse votes, partly because his own family has owned property in Fenwick for many years, he said, and he’d like to still have voting rights, even if he and his wife were to change their residence.

After months of research, discussion and debate, Lee said she didn’t want to drop the topic, either. Her goal has always been just to restore the votes that were lost, which is no longer the simple matter it once was.

The proposal initially came from the Ad-Hoc Election Committee, which in late 2015 was created for public outreach, to explain who’s eligible to vote and how to register.

But their close review of the charter led the committee to suggest changes that would clarify, simplify or change the rules. They sent proposals to the Charter & Ordinance Committee, which made some tweaks and passed the recommendations to THE council.

The recent ordinance proposal would have allowed two votes for any trust; four votes maximum for any property owned by non-residents; still one vote for business LLCs, which is a rare voting right for businesses in Delaware; and still guaranteed votes for all residents, regardless of property ownership.

The Fenwick Island Town Council is still considering two other charter changes. They said they definitely want to clarify some elections-related legal definitions, such as “resident.” They’re also researching whether to increase the Town’s financial borrowing limits. The Charter & Code Committee will discuss both items at their Oct. 6 meeting, at 1 p.m.