Sunday, May 22, 2011

WTF Southbridge?

Kenneth M. O’Brien


I confess that I am outspoken and prone to expressing my opinions.

However, as hard as some might find it to believe, others also ask me frequently for my opinion on certain matters.

More often than not, as those who know me will tell you, I conclude my observations with the proviso “That’s my opinion, and it’s worth what you paid for it.”

I can only wish that others were as modest (or, alternatively, that I could get paid as handsomely as some).

Specifically, I refer to the opinions that are rendered by those who pose as referees on legal matters.

My pique at this issue was brought to a head recently by the opinion offered by our town attorney on the matter of the Landfill Royalty Funds.

He concluded that only a majority vote was required on the appropriation of an additional half million dollars because, “by virtue of Chapter 13 Section 1 (13-1-2) of the Charter the provisions of the Charter prevail over the special act…Accordingly, it is my opinion that appropriation of the full amount of the Landfill Royalty Fund can be accomplished by adoption of the present proposed budget  by a simple majority vote of the Town Council.”

The section of the Town Charter cited by the town attorney reads as follows:

” 13-1-1:            All General Laws, special laws, town by-laws, town council votes and rules, and rules and regulations of or pertaining to the town that are in force when this charter takes effect, and are not specifically or by implication repealed hereby, shall continue in full force and effect until amended or repealed, or rescinded by due course of law, or until they expire by their own limitation.”

What is omitted in the opinion is the heading of this Chapter. Specifically, the heading is, “TRANSITIONAL PROVISIONS”

In other words, these are provisions that are supposed to apply only in the transition from the previous Charter to the new one. Insofar as the Office of the Massachusetts Attorney General had approved the terms of the Charter, it superseded any prior “General Laws, special laws, town by-laws, town council votes and rules, and rules and regulations of or pertaining to the town”, not those enacted subsequently.

But, even allowing that the opinion of the town counsel is valid (which is clearly ludicrous), it creates numerous other issues.

Let’s take for example the counsel’s last controversial opinion.

This had to do with the composition of the Board of Health.

The issue then was whether the composition of the Board should be three or five members.

In his opinion on this matter the town counsel stated, “A simple, unbiased review of the Town Charter paragraph 4-3-1, Town Charter paragraph 4-3-2 and Town Code of By-Laws Section 3-209 provides full guidance for us. Although the Town Charter in paragraph makes reference to ‘a three member board of health’, paragraph 4-3-2 clarifies that ‘The town manager shall have the power to appoint, subject to confirmation by the town council, such other members of boards and commissions as are authorized by the General Laws, this charter or other by-laws and for whom appointment is not otherwise provided.’ (Bold font is for my emphasis). Essentially, the paragraph 4-3-2 qualifies the language of 4-3-1 to allow the Board of Health to be expanded by a provision of the Massachusetts General Laws, a provision of the Charter, or a Town By-Law. “

So, whereas the town counsel opined in his June 16, 2010 letter that a by-law could take precedence over a specific term of the Charter, his opinion of May 11, 2011 regarding the Royalty Fund stated that the Charter took precedence over not only special acts of the Legislature, but “town by-laws, town council votes and rules, and rules and regulations.” WTF?

This is not the only problem with the town counsel’s opinion regarding the disposition of Landfill Royalty Funds.

Subsequent to the adoption of the current Town Charter, the town received notice from the State Attorney General on December 8, 2004.  “…we find Southbridge to be a city….”

As a result of this ruling (not opinion) a special act was passed by the Legislature providing that Southbridge would, in all legal respects (with the exception of AG approval of by-laws), be treated as a town rather than as a city.

However, given the town counsel’s opinion on the Landfill Royalty Fund, this special act is meaningless. We are once again the City of Southbridge. WTF?


But it’s not just the town counsel.

While on the town council I raised the Board of Health issue with the Attorney General’s Office.
“Dear Town Councilor O’Brien,
…  Your latest email does not change our position that this issue is not within this Office’s jurisdiction.   This is a matter that you will need to continue to pursue at the local level or through the courts.    
Kelli E. Gunagan, Assistant Attorney General”

So wrote a representative of the Massachusetts Attorney General’s Office to me in an email in June 2008 in regard to my inquiries regarding the legitimacy of the granting of the site assignment to SRD (Casella) and the impact of the modification in the composition of the Board of Health as it related to that decision.

As a consequence, legal action was taken by a number of Southbridge and Sturbridge residents to pursue matters through the courts.

Recently, exercising its judicial authority, the Massachusetts Supreme Court took jurisdiction over the case from the Worcester Superior Court.

In the course of proceeding, the Court issued a general call for Amicus (friend of the court) briefs.

Lo and behold, who should respond but the office of the Massachusetts Attorney General.

The basis of their response? That the citizens’ group lacks standing to bring the case before the court!

So, on one hand, the Attorney General’s office advises that the matter is outside of their jurisdiction, and that we should pursue relief in the courts.

On the other hand, when we follow their advice, they choose to enter the fray, arguing that the citizens’ are not entitled to pursue the matter in the courts. WTF?

Am I the only one who wonders what is actually going on here?

Am I the only one who feels that this whole pattern of events is questionable?

Am I the only one who thinks that a thorough investigation is warranted by an impartial (most appropriately Federal) authority?

Am I the only one asking WTF?




5 comments:

  1. Good demonstration of just how far the levels of corruption and special interests have risen in the Massachusetts political system. I agree that we need a higher and truly independent investigation of these discrepancies. It would also be preferable if the town attorney here in Southbridge would keep more of his "opinions" to himself.

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  2. "You want answers, I want the truth! You can't handle the truth!"
    Sadly, I believe this is what's happening to our Southbridge.
    I watched the Pat Tillman story this past weekend and his family went to the highest level for the truth about what happened to their son and watched all the Generals and Rumsfeld sitting there lying and the Investigative Committee cowtowed to the Generals and Rumsfeld throughout the investigation. In conclusion, the Family were never provided with the truth and the answers they had fought so long to get.
    The people who are in the town council positions in this town do not feel that they are doing anything wrong.
    The taxpayers don't care to hold them responsible.
    It's no win situation.

    FYI - There's a new rumor brewing that a certain minute recorder is being pushed out of her position and replaced with a certain recycling employee who doesn't know how to take accurate minutes at the BOH meetings.

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  4. First Carlisle raided the water and sewer funds that had a surplus of $20 million prior to his arrival. Now Clark is using this ruse to raid the Landfill Royalty Fund. What is important to note is the politics behind this move. The projected property tax increase for this budget is 3.7% (assuming new growth of $100,000). If the $500,000 being looted from the Royalty Fund had to be made up in property taxes, the rate increase would be 6.9%. In his budget message Clark brags about reducing reliance upon free cash to balance the budget as well as a tax rate increase .78% less than last year. It is clear that such claims are smoke and mirrors. He is simply using the same methods that Carlisle used before him. Pretty soon there won’t be any more accounts to raid. What needs to be done is to cut the expenses of the town before we implode.

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  5. Ken, I really like you. I think perhaps we got off on the wrong foot.

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