If Convicted, What Would Happen to Fagen’s Seat?

Story by Jeff Lipton.

As jurors continue to deliberate the fate of Councilman Michael Fagen on Tuesday, the city will have to decide what will happen to his council seat if he is convicted.

Fagen has been accused of illegally collecting more than $15,000 in unemployment benefits from January to September 2010 while serving on the council. The jury has been in deliberations since last Tuesday.

According to the City Charter, the governor can remove a council member in Long Beach and the vacancy may be filled by the majority of the council.

If Fagen is found guilty, the councilman may decide to step down, but if he does not, the council can petition the governor to remove him, according to Denis Kelly, a Long Beach lawyer and former City Council president.

“I’m not so sure he’s going to get convicted,” Kelly said. “But if he is, it doesn’t look good for the City Council to have a sitting felon.

“He could either resign and say, ‘I’m done,’ or he could appeal it and say, ‘They’re wrong and I’m staying,’” Kelly said.

He said in any case, the Democrats will probably act quickly to remove him and replace him. Since Fagen’s term expires in November, the Democrats will then have another incumbent to run for election at that time.

“The Democratic Party would probably petition the governor to remove him,” Kelly said. “They would want to put a brand-new fresh face in his seat and then this person will run as an incumbent in the November election.”

Another option, Kelly said, would be for Fagen to remain on the council and place his fate in the hands of the voters in November.

“It takes the concept of letting the electorate choose, and in that case the electorate would resolve the problem,” he explained. “The electorate would then take care of it.”

Michael Zapson, chairman of the Long Beach Democratic Party, said he would not speculate on what would happen until the jury reaches a verdict.

“The only thing I could say is that if there were a vacancy, the majority of the council would probably appoint someone new,” Zapson said. “There are so many different possibilities that I don’t want to speculate on what could happen. He’s innocent until proven guilty.”

He said he was amazed how long it is taking for the jury to come to a decision. The jury started deliberations the afternoon of Jan. 29, after Fagen’s attorney, Marc Gann of Mineola, and prosecutor Marshall Trager made summations.

“It’s crazy,” said Zapson, who is also a lawyer. “Murder trials don’t go on this long.”

Kelly said that if Fagen is convicted and he is removed from office, it will feel like rare ground. He said he could not recall another case in recent history in which a Long Beach council member has been removed from office.

Fagen told Patch last week that he was the first elected official on record who went before a criminal case over a Department of Labor dispute. Fagen was indicted last February on charges of third-degree grand larceny, petty larceny and 38 counts of offering a false instrument for filing. If convicted, he faces up to seven years in prison.