North Stonington — Less than a week before the special town meeting set for Sept. 14, town officials remain uncertain whether one of its two agenda items can be passed legally.

That item, the result of an Aug. 21 petition circulated by resident Bill Ricker, could create an ordinance that makes it so a losing first selectman candidate is out of the race entirely.

Currently, per state statutes Section 9-188, a candidate who runs for first selectman and loses can become a regular selectman if he or she receives more votes than the others running for selectman positions.

At Tuesday night's Board of Selectmen meeting, Selectman Bob Testa, residents and other town officials raised questions about the legality of the petition and the ordinance it could create.

According to the office of the Connecticut Secretary of the State on Wednesday, the answers may lie in a January 2014 opinion on the matter written by Town Attorney Frank Eppinger.

"Since it appears the Town Attorney has already issued an opinion on this matter which would prevent North Stonington from adopting this change, we would suggest they follow the advice of the town attorney," wrote Av Harris, director of communications for state Secretary of the State Denise Merrill, in an email.

In his findings, Eppinger wrote that town meetings in North Stonington, which doesn't have a charter or an ordinance pursuant to the Home Rule Act, can only work within the four areas of legislative powers allowed by Title 9 of the state statutes.

Those powers, he explained, include establishing the shifts of election officials at polling places; lengthening the terms of tax collectors, town clerks and registrars of voters; determining the number of town officers and whether they are elected or appointed, and determining voting districts and polling places.

Thus, he concluded, the town meeting "does not have the lawful authority to enact an ordinance overriding and nullifying the 'bumping' provision of (Section) 9-188."

Harris said Eppinger's opinion has clout because of the Home Rule Act, which allows towns to choose their own governmental structure and to decide whether to adopt their own charters.

"The Secretary of the State does not have legal authority to interpret the CT Home Rule Act," Harris explained. "Therefore, it is something that needs to be interpreted at the local level."

In an Aug. 26 email, Eppinger stood by his initial opinion, writing that he hasn't found a single non-charter, common law town in the state that's enacted an ordinance changing the way votes for selectmen are handled.

Still, he wrote, "An independent look at this question would certainly be in order."

Mullane already has sought advice from Thomas Londregan, an attorney with the New London-based firm of Conway, Londregan, Sheehan & Monaco.

In an emailed Sept. 1 opinion, Londregan wrote that an exception written into Section 9-188 — "unless otherwise provided by special act, charter or ordinance" — means that "North Stonington may pass an ordinance to 'opt out' of the requirements."

Mullane said Tuesday that he also has contacted attorney Bruce Chudwick and officials at the offices of the state secretary of the state and attorney general.

Additional questions asked Tuesday night included whether the timing of the petition and the resulting meeting, which is just 50 days from Election Day, is legal and whether a town meeting has to be called within 21 days if town officials are not certain about the legality of the item brought forward.

The latter question has been addressed in several court cases, including a 1975 state Superior Court case, State ex rel. Feigl v. Raacke, which found that "While the board of selectmen is required to warn a town meeting on petition of twenty inhabitants qualified to vote ... there is no duty to warn a meeting pursuant to such a petition unless the board is reasonably certain that the object of the petition is lawful, proper and not frivolous."

The Sept. 14 meeting is slated to occur at 7 p.m. at the North Stonington Elementary School.

l.boyle@theday.com

Twitter: @LindsayABoyle