Wednesday, July 20, 2011

The Charter Chupacabra

CHUPACABRA
Kenneth M. O’Brien


Wasting no time, the new Town Council leadership took a meat axe to the recommendations of the Charter Review Committee.

While the absence of members of the Charter Review Committee (CRC) was lamented, such posturing was disingenuous in the extreme.

Members of the CRC were never informed of the hearing or invited to attend. The Chairman was on vacation in Maine. Other members found out only through an email from the Chairman of the CRC on Monday or through reading about it in the newspaper.

Featured in the article in Wednesday July 20th’s Evening News titled “Pay your taxes, fees to run for office?” was a plan to require that any candidate for public office be up to date on their town taxes and town fees. Despite the expert constitutional opinion of the town attorney, I believe that such a proposal would, at a minimum, be a violation of the due process clause of the 14th Amendment to the U. S. Constitution.

In another interesting observation by the Town Attorney, “Caprera defined that last
term [quasi-judicial board] as any board ‘that holds hearings, takes evidence, and can impose penalties’ under state law — a list that includes the Planning Board, Conservation
Commission, Liquor License Board, Board of Health and Zoning Board.”

Such an observation is interesting insofar as the very fact that the Board of Health is such a quasi-judicial board was one of the primary reasons that the prior council determined that the reorganization plan by former town manager Carlisle that boosted the membership of the BOH to five violated the Charter.

As regards the other revisions that have been proposed by the General Government Subcommittee so far, I predicted virtually all of these almost two months ago.

Recall that, prior to the June 1 tornado, a Council of the Whole meeting had been scheduled for that evening to review the CRC recommendations. In an article titled, “The Next Shoe To Drop” I predicted (regarding the new council majority)::


” Here is what they will attempt to do:

Board of Health: They will institute an appointed five-member board of health. As we have seen in the past, that will be a mechanism to give free reign to our residents’ indentured servitude to Casella.

Town Manager: They will amend the Charter to require 6 votes to remove the town manager as opposed to the current 5 votes. They will argue that six votes are required to remove the council chairman. However, the council chairman is the head of government under our Charter. He is elected, by the public and by the council. Severe restrictions are imposed to remove any elected official under the Charter via recall.  On the other hand, the town manager is a hired employee with no public constituency. His only constituency is a pacified council majority.

Town Attorney: The CRC recommended making the town attorney answerable to the council chair. As observed above, the council chair is the legally constituted head of government. We have witnessed the consequence of a town attorney who is subservient to an unelected employee with a self-serving agenda.

Term Limits: The CRC decided to remove the Charter’s restrictions on the number of terms a councilor could serve. The reason was that councilors are not unitary executives who can perpetuate their status through patronage as might be done by, say, a mayor. Rather, long-serving councilors can provide a valuable “institutional memory” as was the case with the late Laurent E. McDonald.

Town Clerk: The gang of five wants to make the Town Clerk’s position appointed rather than elected. They feel that recent controversies have made the current Town Clerk vulnerable. Can you imagine the consequences if the chief town official responsible for the integrity of elections was answerable to the town manager?”

So far the only predictions unrealized are those relating to the town attorney and the town clerk. But, there is another meeting scheduled.

So, whereas a group of five citizens met almost every other week for a year to study all the intricacies of the Charter before submitting its recommendations, a committee of five now feels qualified in two evenings to dispense with all that work.

And then they wonder why residents don’t wish to participate in town government.

13 comments:

  1. If they are going to limit people that are late on water and sewer bills or property tax bills from running for Council, does that mean that if a Councilor is currently in arrears, are they Grandfathered in. or must we have another special election?

    Rinaldo Bernardone, is already on two quasi-judicial boards. Could the talk to limit how many boards one can sit on be a desperate attempt to force him off the Board of Health? Does the council really require a Charter change to keep themselves from making an appointment or reappointment? And if there was such a charter change, would it be respected? The appointment of five member board of health when the Charter stated there where three, and the recent looting of the landfill enterprise fund are examples of a council willing to do what they wish despite the rules.

    If tax delinquents can be restricted from running for Council, can we restrict tax delinquents and old women that are late on their water bills from voting too? Maybe we can restrict people that don't recycle from voting as well? Of course if they could restrict who runs for Council, they could make these other limitations as well, but they can't do any of things, but the fact that they are trying to is very telling. Mr. O'Brien is correct-such a Charter change would not meet Constitutional muster.

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  2. According to the article in Monday evening's paper, they are considering reformig another committee and review the charter again. Can this be done?

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  3. I believe that it can be done, once the current recommendations are resolved.

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  4. To answer Anon’s question, the answer is NO. A charter review committee is only appointed every 5 years. In between those 5 years a by-law review committee may be appointed. They do not have the power to reappoint another CRC now. This is more evidence that many in the new council are either disregarding the rule of law, or are ignorant of it. We’ve seen demonstrations of both in recent months. In either case, they are cause for recall. However, I will give the benefit of the doubt and just assume, for now, they are simply overly ambitious. My hope is the new Chair will reign them in.

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  5. To clarify, according to Mass Law, they can ammend (with some exceptions) by 2/3rds vote, but our Charter now clearly states that a CRC is only appointed once every 5 years.

    In terms of changing the appointment/election of the Town Clerk, they don't have that authority. That goes back to the process of an elected charter commitssion of 9 members (following state law, not local law).

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  6. Raciel:

    With all due respect, you are wrong.

    First, while the Charter requires a Charter Review Committee every five years, nothing prohibits it more frequently.

    Second, after extensive review, we found communities that had substantially altered their Charter through the option of Special Legislation without ever having a Charter Commission.

    Finally, as regards the Town Clerk position, this too has been altered from an elected to an appointed position. See:

    http://www.gazettenet.com/2011/06/14/residents-ok-change-to-town-clerk-post

    or:

    http://www.town.dartmouth.ma.us/Pages/DartmouthMA_BComm/SelectBoard/business%20plan.pdf

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  7. Good point. I think you and Dennis are right. It addresses minimum guidelines but not maximum ones. I think what's throwing me off is that the intent of the legislation is that the power to amend or create a charter is not in the hands of a few. Article LXXXIX Sections 3 and 4 both say that the amendmended charter need be submitted to the people. So, I guess, I don’t care what they do as long as the final product comes back to us to vote on. Is that what actually happens?

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  8. @Raciel this might be a good question for someone at the Worcester Law Library.

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  9. Stephanie J DeMartinoJuly 21, 2011 at 12:27 PM

    I have a question, didn't you guys sign off on the report and hand it over to the Town Council to begin reviewing your recommendations last year around September or October of 2010? So why would you then want to come and attend the subcommittee meeting that I was at to do what exactly? You spent a whole year on making your recommendations and then it sat for almost a year untouched until Kathy Nikolla made the announcement that the Town Council would begin going over the recommendations in the subcommittee level, General Government before it goes up to the Town Council for more discussion. I mean I'm at a loss year and especially since you were a former Town Councilor. You would've had to have known this was the process right?
    Also we are continuing beginning with Chapter 5 School Committee on Tuesday January 26th, at 6:30pm if you would like to attend. In the Rice Conference Room.

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  10. Stephanie J DeMartinoJuly 21, 2011 at 12:32 PM

    I meant to say I'm at a loss here not year, Sorry.
    And from what I witnessed not every single recommendation is being challenged, changed or voted on to strike or keep. I thought it was a great meeting. We all took part in the discussions and everyone had a great opinion whether everyone disagreed or not no one became mad or walked out. I really enjoyed watching and taking part in it. I'm looking forward to next Tuesday night. You should come. In fact everyone should come and see how it is all unfolding. Don't just listen to hearsay or believe what you read in the paper even though I have to say Gus really for one of the rare times I've read his articles, had the information accurate. :)

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  11. Stephanie J DeMartinoJuly 21, 2011 at 12:36 PM

    One more thing, I didn't mean to say why come, of course you should come. I just meant that your job as the charter review was done and now this is on it's way up through the subcommittee to the Town Council. I agree with Councilor Vandal that if there were any questions as to why you guys chose the way you did on the recommendations then you should be available to answer questions. I have the greatest respect for the work you did on the Charter. I did attend two meetings and saw how much time and process you took for each item.

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  12. If that's what this council has been doing the whole time, no wonder nothing ever gets done or works. To have a committee rehash another committees year-long review is asinine. But, hey, nothing in the way this town operates surprises me.

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