Monday, August 1, 2011

Where Is The Attorney General?

Kenneth M. O’Brien


The Board of Health of the Town of Southbridge is comprised currently of two members, Anne Beinema and Rinaldo Bernadone.

In conformity with a point of order raised by former councilor Richard Logan, and as specifically provided for in the town charter, there is one vacancy.

Nevertheless, tomorrow evening (August 2), the subcommittee on Education and Human Services will vote on recommending to the full council the nomination of two additional members to the Board.

This is all part of an effort to return to the previously illegitimate five-member Board of Health and thus stack it with a majority that would favor the interests of our corporate overlords at Casella.

On July 19, 2010, the town council voted a resolution and sent it off to the Massachusetts Attorney General (and would be U. S. Senator) Martha Coakley.

That resolution read as follows:

REQUEST FOR A RULING BY THE OFFICE OF THE MASSACHUSETTS ATTORNEY GENERAL ON AN ACTION TAKEN BY THE SOUTHBRIDGE TOWN COUNCIL ON JULY 19, 2010.

Summary of the action taken


            On July 19, 2010, Town Councilor Richard Logan raised a Point of Order in

conformity with Robert’s Rules of Order, as outlined below, that the vote of the Town

Council on July 9, 2004 calling for a reorganization of the Board of Health and that the

bylaw subsequently enacted to implement that reorganization were out of order insofar as

they violated the specific terms of the Southbridge Home Rule Charter, which states

in   §4-3-1 “The town manager shall have the power to appoint, subject to confirmation

by the town council, the following boards and commissions: (a) a three member board of

health…”

            Town Council Chairman Steven Lazo ruled that the councilor’s point was well-

taken and that the prior vote of the Town Council and the subsequent bylaw were null 

and void.
            These actions were based upon the following components of the Home Rule

Charter of the Town of Southbridge, the Town Council Rules and Regulations and

Robert’s Rules of Order.

           
§2-4-1 of the Southbridge Home Rule Charter states, “Except as otherwise

provided in this charter, all general, corporate, legislative, policy-making, and

appropriation powers of the town shall be vested in the town council.”

            §2-4-2 of the Southbridge Home Rule Charter provides, “The council may

enact…rules and regulations not inconsistent with this charter governing its own

proceedings…”         

            The Southbridge Town Council Rules and Regulations provide in Rule 11

that. “The Chairman of the Town Council shall preserve order and decorum,

may speak to points of order in preference to other members and shall decide all such

questions.”

            The Southbridge Town Council Rules and Regulations provide in Rule 18 that

“All rules of procedure not considered herein shall be governed by Roberts Rule of

Parliamentary Procedure.”

            Robert’s Rules of Parliamentary Procedure, 10th Edition, pg.244 stipulates that,

The only exceptions to the rule that a point of order must be made at the time of the

breach arise in connection with breaches that are of a continuing nature, in which case a

point of order can be made at any time during the continuance of the breach. Instances of

this kind occur when:
a) a main motion has been adopted that conflicts with the bylaws (or constitution) of the
   
organization or assembly."

The Board of Health was not legally constituted under §4-3-1 of the Town of Southbridge’s Home Rule Charter (“the Charter”). This was a direct result of an ongoing violation of the town charter (i.e. its “constitution”) resulting from the vote of  July 9, 2004 and the bylaw that was enacted as a result of that action. As a consequence, the councilor’s point of order and the ruling of the Chair were entirely appropriate.
History
            As required by law, the Town of Southbridge elected a Charter Commission on June 7, 2002 to review and revise the Town’s charter.   After many meetings, a great deal of research and much deliberation, the Charter Commission drafted a revised Charter and submitted it to the Town.  The current Charter was then adopted by the electorate of the Town of Southbridge on June 6, 2003 and took effect on July 1, 2004 on the recommendation of that Charter Commission. After the current Charter went into effect on July 1, 2004, a three member Board of Health was mandated. 
            However, on May 4, 2004, the Town signed a Memorandum of Understanding with a subsidiary of Casella Waste which eventually became Southbridge Recycling and Disposal Park, Inc.   In that MOU, the Town agreed to increase the types of material requested and increase the volume of material that the Landfill could accept.  The Town Manager subsequently recommended a “reorganization plan” that expanded the BOH to five members, allowing him to appoint two more members.  It was accepted by the Town

The Board of Health was not legally constituted under §4-3-1 of the Town of Southbridge’s Home Rule Charter (“the Charter”). This was a direct result of an ongoing violation of the town charter (i.e. its “constitution”) resulting from the vote of  July 9, 2004 and the bylaw that was enacted as a result of that action. As a consequence, the councilor’s point of order and the ruling of the Chair were entirely appropriate.
History
            As required by law, the Town of Southbridge elected a Charter Commission on June 7, 2002 to review and revise the Town’s charter.   After many meetings, a great deal of research and much deliberation, the Charter Commission drafted a revised Charter and submitted it to the Town.  The current Charter was then adopted by the electorate of the Town of Southbridge on June 6, 2003 and took effect on July 1, 2004 on the recommendation of that Charter Commission. After the current Charter went into effect on July 1, 2004, a three member Board of Health was mandated. 
            However, on May 4, 2004, the Town signed a Memorandum of Understanding with a subsidiary of Casella Waste which eventually became Southbridge Recycling and Disposal Park, Inc.   In that MOU, the Town agreed to increase the types of material requested and increase the volume of material that the Landfill could accept.  The Town Manager subsequently recommended a “reorganization plan” that expanded the BOH to five members, allowing him to appoint two more members.  It was accepted by the Town Council on Jul 9, 2004 with Kopelman & Paige’s (former town attorneys) approval.[1]  As described below, there were legal ways to amend the Charter, which the Town Council did not do. 
Home Rule Charter, §12-5-2 and Mass. Gen. Laws ch. 43B, § 10.
The Charter requires that the Code of Bylaws (“the Bylaws”) adopted in Southbridge be, “…not inconsistent with the charter.” Southbridge, Mass., Home Rule Charter §2-4-2.  But while the Charter states that the Board of Health should have three members, the Bylaws state that the Board of Health should have five members. Southbridge, Mass., Home Rule Charter §4-3-1, Southbridge, Mass. Code of Bylaws, §3-209.2 (2009).  Thus, Bylaw §3-209.2 is not in compliance with the Charter because it does not follow the specific requirement of a three-member Board of Health.
A charter amendment would have been necessary to constitute a five member Board of Health.  There are only two legal ways to amend the Charter:  (1) Through the two statutory amendment processes of chapter 43B, sections 10 and 11; or (2) By petitioning the General Court for a special act amending the Charter. Mass. Gen. Laws ch. 43B, §§ 10, 11 (2009).  The failure of the Town of Southbridge to amend the Charter is also particularly inexcusable because §12-5-2 of the Charter requires that the Charter be revised every five years by a charter review committee, allowing for yet another regular legal manner to amend the Charter. Southbridge, Mass., Home Rule Charter, §12-5-2.   At no point did the Town Counsel of the Town of Southbridge amend the Charter to add members to the Board of Health, despite being petitioned to do so by citizens of Southbridge in 2009.  As a result the Board of Health is not legally constituted.


[1] The stated purpose of this “reorganization” was so it would be easier for the BOH to make a quorum, though BOH meeting minutes show regular meetings where a quorum, usually all members, were present. 
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Home Rule Charter §4-5-1. 
Here, the Board of Health as constituted in the Charter was fundamentally altered “without resorting to the two valid methods created for the amendment of municipal charters.” Town Council of Agawam v. Town Manager of Agawam, 20 Mass. App. Ct. 100 (1985).  Defenders of expansion of the Board of Health might argue that amendment of the Charter is unnecessary.  Indeed, §4-5-1 of the Charter allows the Town Manager to “propose a plan, subject to applicable law and the terms of this charter, to establish, reorganize, consolidate or abolish any town agency under his or her jurisdiction.” Southbridge, Mass., Home Rule Charter §4-5-1.  Such an assertion is incorrect because the expansion or reorganization of the Board of Health (1) was directly inconsistent with the terms of the Charter, (2) was not acceptable under the applicable law, Mass. Gen. Laws ch. 43B, and (3) the Board of Health is not under the Town Manager’s jurisdiction. 
The change in the Board of Health was contrary to the Charter, as the Charter clearly mandates “a three member board of health” and the Town has a five member Board of Health. Southbridge, Mass., Home Rule Charter §4-3-1.  When a charter is unambiguous, a municipality and all of its officials are beholden to its obvious standards. See Agawam v. Agawam, 20 Mass. App. Ct. 100; O'Connell v. Mayor of Lynn, 54 Mass. App. Ct. 583 (2002).  Further, as previously discussed, the expansion of the Board of Health via a bylaw rather than amendment of the Charter violated Mass. Gen. Laws ch. 43B.  See Mass. Gen. Laws ch. 43B, § 10.  Thus, the Town Manager’s §4-5-1 reorganization powers are inapplicable if used to contradict unambiguous Charter terms.  This is true not only because the expansion of the Board of Health violated the Charter,
but also because Mass. Gen. Laws ch. 43B is “applicable law” that the Town Manager’s actions would be “subject to.” Southbridge, Mass., Home Rule Charter §4-5-1. 
Further, the Board of Health, a quasi-judicial board, is not under the Town Manager’s jurisdiction to reorganize.  “A municipality can exercise no direction or control over one whose duties have been defined by the Legislature.” Daddario v. Pittsfield, 301 Mass. 552, 558 (1938).  The Board of Health has been granted its powers and responsibilities by the Massachusetts Legislature in the Mass. Gen. Laws.  The integrity of these powers is undermined by the Town Council’s and the Town Manager’s disregard of both municipal and state law.
If the Town Council and the Town Manager can “reorganize, consolidate or abolish” the Board of Health, they could do the same to the Zoning Board of Appeals, the Planning Board, the Conservation Commission and so on. Southbridge, Mass., Home Rule Charter §4-5-1.  Home Rule Charters, like constitutions at the state and Federal levels, set forth the principles upon which municipalities must rely to govern in a standard and ethical fashion.  Thus, the expansion of the Board of Health violates both the General Laws of Massachusetts and the Charter, precluding any justification under §4-5-1 of the Charter.
De Facto and De Jure.
Kopelman & Paige, former Southbridge Town Attorneys, have argued that even if the Board of Health should not have been expanded, the two additional members have become de facto officers by course of conduct.[1]  However, an officer can only become a


[1] SRD/Casella also made this argument before the Superior Court in the appeal of the 2008 BOH Site Assignment.  However, the Court would not rule on this issue, saying “the legality of the composition of the Southbridge Board of Health is beyond the scope of the review allowed under this proceeding.”  The Court diid NOT find that the composition of the BOH was legal.
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de facto appointee if the office itself is legal, or de jure.  “This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill.” Norton v. Shelby Co. State of Tennessee,  118 US 425, 441 (1886); Annoni v. Blas Nadal’s Heirs, 94 F.2d 513 (1938). 
Regardless, the resignation of Mr. Cook and Mr. Tremblay allows the Town Council the opportunity to correct an inadvertent mistake and ensure that the Board of Health is legally constituted.  In contrast, if the Town Council and the Town Manager need not adhere to the rule of the Charter in this instance, it is not apparent when they will have to.   
Conclusion.
The Board of Health was not legally constituted.  The Town Manager and Town Council acted outside of their respective powers as granted by the Charter by expanding the Board of Health from three members to five.  Upon the resignation of Mr. Tremblay and Mr. Cook, the three legal seats held by the three current members of the Board of Health is clear, as demonstrated by the following timeline:

TIMELINE
Board of Health Membership

6/16/05-7/20/05                T. O’LEARY, J. ZAIDO, R. BERNADONE *
 7/20/05-8/21/07                T. O’LEARY, J. ZAIDO, R. BERNADONE, R. TREMBLAY
8/21/07-6/09                T. O’LEARY, J. ZAIDO, R. BERNADONE, R. TREMBLAY, D. COOK
6/09- 6/30/10                 T. O’LEARY, A. BEINEMA, R. BERNADONE, R. TREMBLAY, D. COOK
7/01/10 – Present T. O’LEARY, A. BEINEMA, R. BERNADONE


* Last time Board of Health had three members.


It can be seen from this timeline, that the supposedly de facto members of the Board of Health were, in fact, Rene Tremblay and Dean Cook. Theirs were the seats that were created under the illegitimate reorganization proposal.
Anne Fenwick-Beinema was appointed to the seat occupied previously by Judith Zaido. This was a legitimate seat that existed prior to the reorganization. The current Board of Health as it currently exists is properly constituted with all three members appointed to positions that existed prior to the reorganization.


  If the Council determines in the future that the Board should be expanded, the Charter can be amended legally in a matter of months, or changed when the Charter Review Committee currently in session submits a revised charter to the Town.  Not only is a five member BOH illegal, but it sets a dangerous precedent for the Town to ignore its Charter.  Now is the time to rectify this grievous error, and ensure that future decisions are made by a legal Board of Health.
Petition
On behalf of a majority vote of the legally elected members of the Southbridge Town Council, I request a ruling from the Office of the Massachusetts Attorney General that the actions taken, as outlined above, are consistent with all relevant laws and precedent, and that the Southbridge Board of Health, as currently constituted, is legitimate and entitled to exercise all appropriate authority as delegated by the General Laws of the State of Massachusetts.


___________                                                                          ________________________
Date                                                                                                    Steven Lazo
                                                                                    Chairman
                                                                                    Southbridge Town Council


To date the Attorney General’s office has not responded to this request.

Interestingly enough, however, the same office has found the time to introduce an amicus curiae brief opposing the citizen action relative to the site assignment hearings related to the landfill operator now before the State Supreme Court.

Exactly whose interests is the AG serving when her office cannot even respond to a formal request from the governing body of a community of the Commonwealth?




7 comments:

  1. This is one of the greatest action that the Town Council could do is to return the BOH to 5 members. The action that Lazo and Logan did was underhanded and I would also assume with your help. If they would have done this through open dialog during open and honest discussion of the full council. They failed on this and now it will be fixed. The 5 member BOH goes way back even before the site assignment issue. One of the present members were always a no show along with another member and the board failed to have a meeting this happen time after time. But because of the recent action of approving the modification of the ladfill some to include you have gotton on the band wagon to say it was wrong. Where were you and your followers than. Its okay because its going to end soon when the courts rule one way or another on the landfill. The RATS will still keep tryingbut soon the pro bono phoney will go on to something else.

    ReplyDelete
  2. Southbridge Pest ControlAugust 1, 2011 at 9:21 PM

    LOL, three strikes you are out, you just posted three false claims in one post!

    The five member board of Health was formed only months before the Site assignment came up-get your facts straight-your post is full of misinformation.
    The record proves that there was never one month that there wasn't a board of health meeting-not one month-there was no need to add two members before the landfill expansion plans.

    And it was the Rats that tried to get a five member BoH-they collected signatures to force a hearing. The current Councilors that want five members now didn't want five then.

    We used to have five member board of health in the 40's, 50;s, and 60's, and they were all Doctors, every one of them.

    Nothing is ending soon, this is going to be resolved in either Federal Court or at the first town meeting in over three decades, and it is not an action of the Rats, although the 150 or more Southbridge citizen's that are a part of the current action will be invited to join, and you will be invited too.

    ReplyDelete
  3. Veeery Interesting,,,August 1, 2011 at 9:48 PM

    Wow. I think I finally get it. For years I have been perplexed about why a town would use up its landfill so quickly for less than 9% of the tipping fees, but when I read how so confident and misinformed the bug is, I can see how people could support that awful deal.

    ReplyDelete
  4. Misinformation, coupled with plain ignorance on behalf of the supporters of much of the trouble in town, have been their main tools of power. Well, there's a new group of citizens that plans on properly and truthfully informing the people and calling our newspapers to task for regurgitating this misinformation. Once the citizens get the full picture, they immediately are outraged.

    Join us tomorrow evening at 7PM to plan on ways of taking our town back. Details here http://ozonesouthbridge.blogspot.com/2011/07/do-what-youre-told.html or here http://thepoliticaltrash.blogspot.com/2011/07/baby-democracy-is-born-in-southbridge.html

    ReplyDelete
  5. The problem with your group that its going to fail as fast as it started because of the one sided factor. (That factor is anti government against everything the government does) you group should get together with Jessie Venture. Go back and look at history the BOH had attendance problems when Jim P was the agent and Sue C. and Ranildo B was on and thatis when the research was started to go to five

    ReplyDelete
  6. We're not anti-government at all. Why, I love the way Sturbridge operates its government with citizen input. They even manage to put all of their public meeting announcements on-line. LOL!

    The opposing side will always bring out the "your anti-this, you're anti-that rhetoric". Childish.

    To challenge our government to stick to the constitution (Charter) -- a contract between the people of Southbridge and those that represent us -- is not anti-government at all; it's actually pro-government. We want them to operate as we've agreed. What we're "anti", if anything is ANTI-INCOMPETENCE. I'm tired of those that abuse their position that we've bestowed on them and corrupt the role they're supposed to play. Brow beating a volunteer representative to resign for doing her job on the Board of Health, while crack-heads run rampant on Main Street, will no longer be tolerated!
    At its best, it's incompetence and bullying; at its worst, it's abuse and corruption.

    ReplyDelete
  7. Actually, I know it's not really something people like to hear around here, but I really like the way Sturbridge operates its municipal government, too. Tom C. is very competent, and communicates well with his constituents. They're lucky to have him.

    ReplyDelete

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