Threat to Vacate Seat

Legal Summary & Key Takeaways

• No Forfeiture of Office: The Wilmington City Charter does not list political party affiliation as a requirement for holding office.

• Constitutional Right to Association: Under U.S. Supreme Court precedent (Elrod v. Burns), a public official cannot be forced to relinquish their right to political association to keep their position.

• Protecting the Voter Mandate: The Wilmingtonians who cast their ballots have a right to be represented by the person they elected. Upholding the election results ensures that the democratic will of the people remains the final word.

• Legal Precedent: The Pennsylvania Supreme Court (relevant as the Philadelphia Charter influenced the Wilmington Charter) ruled in Teller v. Jennings that officials represent all constituents, not just a political party, and may change affiliation during their term.

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Full Text of Bill Larson’s Letter Below:

Date: February 12, 2026

From: William B. Larson Jr., Partner, MGM Law Firm

To: The Honorable Ernest “Trippi” Congo, II, Wilmington City Council President

Dear President Congo:

We represent Wilmington City Council Member James Spadola regarding your letter dated February 6, 2026, concerning our client’s political affiliation and a contemplated action to vacate his council seat based on the same. As the City of Wilmington Law Department previously concluded, there is simply no basis to vacate Council Member Spadola’s seat. Please accept this letter as Council Member Spadola’s response to your letter and as a formal request that you cease any attempt to vacate his seat based on his political affiliation and confirm that you will not attempt to do so in the future.

Any such action would be contrary to the Charter of the City of Wilmington (the “Charter”) and disenfranchise the many Wilmingtonians who voted for Council Member Spadola. We reserve all rights to seek judicial intervention and remedy should you seek to remove Council Member Spadola from office.

Affiliation with a particular political party is not a qualification for holding office as a councilman-at-large in the City of Wilmington. As the City Law Department previously concluded, the Charter does not prevent a sitting councilmember from changing their party affiliation during their term in office. Indeed, Council Member Spadola relied on this analysis before switching his affiliation and in continuing to serve the people of Wilmington for more than 4 months since doing so.

A careful reading of the Charter further supports Council Member Spadola’s position. It is true that the Charter prohibits political parties from nominating more than 3 candidates for councilmember-at-large. See, Sec. 2-101 of the Wilmington City Charter: “not more than three (3) candidates for councilmen-at-large shall be nominated pursuant to law by any party or other political body”. However, there is no such requirement that a council member remain politically affiliated with the party which nominated him during his tenure on council.

The Charter at Sec. 2-103 “Qualifications of Councilmen” clearly lists all of the qualifications for a council member. A violation of any of these qualifications (for example, if a sitting councilmember were to accept employment at another City office) would result in a forfeiture of the councilmember’s seat. A councilman shall be a citizen of the United States, shall be a qualified elector of the city and shall have been such for at least one year prior to his election. No councilman shall hold any other city office or employment during the term for which he was elected to the city council. A councilman shall not be less than twenty-five (25) years of age when elected to office. He shall remain a resident of the councilmanic district from which he was elected during his term of office.

If a councilman shall cease to possess any of these qualifications… his office shall immediately be forfeited and become vacant. Please note the absence of a political affiliation qualification requirement in the Charter which would support an attempt to vacate Council Member Spadola’s seat based on his political party.

For the avoidance of doubt, you may compare the above qualifications for Council Members to the qualifications for the City of Wilmington Ethics Commission (Section 2-341) and the City Planning Commission (Section 5-500), which both explicitly cap representation of a single political party at 4 members. There is no such parallel qualification for City Council, and the statutory doctrine of expression unius exlusio alterius provides that the lack of such a qualification was purposeful. See, e.g., Brown v. State, 36 A.3d 321 (finding an inference that all omissions to statutes were intended by Delaware’s Legislature).

Not only would vacating Council Member Spadola’s seat constitute a violation of the City Charter, it may also violate federal law: the U.S. Supreme Court has held that the government may not force a public employee to relinquish his right to political association in order to keep his job. See, e.g., Elrod v. Burns, 427 U.S. 347 (1976).

The City of Wilmington voters elected Council Member Spadola to service on City Council. Vacating his seat on the City Council would not only violate the clear substance and intent of the City’s Charter, but would also disenfranchise the voters who elected Council Member Spadola without regard for their due process and voting rights. Moreover, replacing him with someone appointed by City Council is antidemocratic and would subvert the will of the voters.

Council Member Spadola reasonably believed that this matter has been resolved for four months. In early October 2025, we understand you informed Council Member Spadola that you would be looking into his change in political affiliation. Shortly thereafter on Oct. 8, 2025, Elijah Simmons, the City Council Chief of Staff, assured members of the press and public that Council Member Spadola may continue to serve “based upon the language in the charter and no written prohibitions against party affiliation changes while in office”. To now seek to vacate Council Member Spadola’s seat would represent a complete reversal of City Council’s prior representations to the public, the conclusions of the Law Department and Solicitor, not to mention a clear violation of the City’s Charter itself.

As you may know, the City Charter was influenced by the City of Philadelphia Charter. Accordingly, we looked to Pennsylvania court decisions that may provide further guidance on this issue. The Pennsylvania Supreme Court examined nearly this exact issue in Com. ex. rel. Teller v. Jennings, 186 A.2d 916 (Penn. 1963). The Court determined that once elected a minority party representative may change their political affiliation and explained its critical importance in our system of government: requiring a public officeholder to continue after taking office as the representative of his political party, would be to charge them with a complete misunderstanding of the nature of the American political system. Once a person assumes public office he becomes the representative of all his constituents and not merely those who voted for him or happen to belong to his political party.

We respectfully suggest it is time to return to the business of the people of Wilmington and set this issue aside for good.

It has also come to our attention that you may have communicated with the other members of the Council in a group-like setting or serial communications in violation of Delaware’s Open Meetings Act (29 Del. C. 10004). If you are communicating with a quorum of Council outside the purview of the public, you are likely violating Delaware’s “Open Meetings” Act, codified at 29 Del. C. 10004(a)(1).

In order to preserve Council Member Spadola’s—and the public’s right to transparency in regard to the machinery of City government, please accept this letter as a records preservation request and consider yourself on notice of the need to preserve all communications related to this issue including any made on your personal cell phone via text message or messaging app in addition to your personal email, City email, and City phone.

Council Member Spadola seeks to put an end to all of this and avoid any expense for the City. He wants to return his focus to serving the people of Wilmington. We request your confirmation by Monday, February 16, 2026 that you will not seek to vacate Council Member Spadola’s duly-elected position as Council Member at-large. We reserve all rights to seek declaratory judgment, an injunction, and additional relief in the Court of Chancery should you take any further action to vacate Council Member Spadola’s seat.

Sincerely, William B. Larson Jr.