Tuesday, December 13, 2011

Southbridge Charter Review Committee Strikes Back



Ken O'Brien


Back in July I wrote a post entitled The Charter Chupacabra.

In that article I made a series of predictions on how the current council would amend the recommendations of the Charter Review Committee.

With one exception all of those predictions came true. The sole exception was that the council would recommend changing the position of Town Clerk from elected to appointed. Perhaps this was a bridge too far. Perhaps it reflected the fact that the current Town Clerk had changed her party affiliation from Democrat to unenrolled.

Having been duly appointed in accordance with the terms of the Town Charter, the members of the Charter Review Committee felt obligated to respond to the actions of the town council.

All five members of the Committee signed the following letter which was sent on December 13 to Senator Richard Moore and Representative Peter Durant.

"As the members of the Charter Review Committee for the Town of Southbridge, the appointment of which was mandated by our current Town Charter upon its adoption, we are writing to express our opposition to the Charter amendments that have been submitted for approval by the State Legislature by the Town Council of Southbridge.

After a year of twice monthly meetings by the committee that were open to the public and included three publicly televised hearings the committee submitted its report to the council.

Action upon our report was delayed by a sequence of unforeseeable events.

The first was the untimely demise of long time councilor Laurent McDonald. The second was the ensuing special election to fill the vacancy created by his absence.Lastly, the meeting was eventually rescheduled and an agenda set for us to meet with the Town Council on June 1, 2011 but had to be cancelled due to the devastating tornado that hit central Massachusetts on that date.

Consequently, the recommendations of the committee were not taken up by the Town Council until the election and installation of a new membership.The new Council never met with us to officially receive our report or hear our recommendations.

In contrast to the year long process involved in developing the committee's recommendations, the proposed changes by the Council were developed in only two meetings of a Council subcommittee.

It is our belief that the new majority that resulted from that election was imbued with a political agenda that disregarded the diligent work of the committee and exercised its will to impose changes that were contrary to, not merely the report of the committee but, the original intent of the Charter as well as State Law.

The most egregious of these violations are:

1) The proposed amendment to change the following section of the Town Charter:

 "4-6-1:Final removal of the manager shall be effected by a majority vote of the entire council (i.e., a minimum of 5 votes) at an open council meeting."
           
           The Council proposes that the vote required to remove the Town Manager be increased from 5 to 6. However, Chapter 43 B of Mass. General laws states in Section 10:

            " ...only a charter commission elected under this chapter may propose any change in a charter relating in any way to the composition, mode of election or appointment, or terms of office of the legislative body, the mayor or city manager, or the board of selectmen or town manager."

      2)  The Council voted to amend the power of the Town Manager to rescind appointments as they relate to quasi-judicial boards by deleting Section 4-4-2 of the Charter.

   "4-4-1:The town manager shall have the power to rescind, subject to confirmation by the town council, for cause, including but not limited to excessive and un-excused absenteeism, incapacity other than temporary illness, inefficiency, insubordination or conduct unbecoming the officer, any appointment made by him or her to any board, commission, committee or individual office under the authority of this charter, provided that the appointee shall first have been served with written notice of the town manager’s intention specifying the reasons for the proposed removal  and informing the appointee of his or her right to be heard at a public hearing if requested.

           4-4-2: Said power shall not apply to quasi-judicial bodies as determined by the town attorney."

    3) The preceding alteration is directly related to local controversies over the town landfill that are a matter of court litigation. This convergence of questionable interests was amplified by the third element of the Council's actions which amended Section 4-3-1 of the Charter relating to the Board of Health: As currently constituted that clause provides:

           "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..."

      The Charter Review Committee recommended that this be changed to an elected three member board. The Council initially voted to recommend a five member elected board.

       However, at the next council meeting, one councilor moved to rescind that vote and then changed to supporting a five member appointed board, thus further expanding the authority of the Town Manager in contradiction of the original intent of the Charter as well as the recommendations of the Charter Review Committee.

These merely constitute the most obvious dismissal of a year-long effort in favor of an obviously political agenda effected over meetings spanning only two nights.

The full intensity of the Charter Review Committee's efforts that were so casually cast aside in the interests of political gain and expediency are contained in the attached documentation.

Given consideration of these matters we respectfully request that you encourage the Committee on Local Affairs to deny the amendments to the Home Rule Charter for the Town of Southbridge that have been submitted for their review and approval.
 
 
Shortly after receipt of the email containing this letter and supporting documents the following email was sent to Charter Review Committee members by State Representative Peter Durant (R - Spencer).

"Dear Mr. McDonald and members of the Charter Review Committee,

This is to confirm that I have received your complaint and the accompanying attachments. I will review the information provided forthwith, and will be back in contact soon.

Please note for your reference that the legislation to place the Charter changes on the ballot has been compiled and written by my office and House Council [sic, that should be Counsel] but as of today has not been filed pending technical review by the Town Manager. I expect this legislation to be filed shortly to allow for the appropriate time needed to work its way through the legislature so it may appear on the June ballot. Should the legislation need to be stopped it may take place after its filing.

Please feel free to contact me regarding any other questions you may have or assistance you may need.

Best regards,
Peter Durant
State Representative
6th Worcester District"


While the proposed legislation awaits Mr. Clark's lawyerly technical review, Charter Review Committee member Dennis Martinek responded to Representative Durant of Spencer as follows:

"Pete,

Why would you want to file something before reviewing it thoroughly--first?

My take is you're setting it up to pass and this approach only benefits the Town Manager.. and yourself.

Otherwise you'd delay it until such time as our findings at least are given the cursory appearance of being taken seriously by your office.

There is no need to rush lax findings onto a ballot, except to curry favor with Chris Clark and his groupies.

I knew when I signed this, Pete, that you'd find a way to diss it.

Thanks for proving my suspicion correct.

Dennis"


7 comments:

  1. Stephanie DeMartinoDecember 13, 2011 at 8:17 PM

    I don't want to believe it but it's too hard not to see the writing on the wall and that writing points to corrupt.

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  2. According to 43B section 10, the AG's office is supposed to review this shenanigans for compliance with state law:

    "(c) Whenever an order proposing a charter amendment to the voters is approved by the mayor and city council or town meeting, a copy of the proposed amendment shall be immediately submitted to the attorney general and to the department of housing and community development and such order shall not take effect for four weeks after the date of such submission. Within such four weeks the attorney general shall furnish the city council or board of selectmen with a written opinion setting forth any conflict between the proposed amendment and the constitution and laws of the commonwealth."

    Wouldn't this have to happen before the special legislation is filed? Or does that make too much sense?

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  3. burning bridges with Durant is not good stratagy. Is it?

    ReplyDelete
  4. One should distinguish between the consequences of burning a bridge or attempting to walk across a chasm where no bridge ever existed.

    ReplyDelete
  5. Kissing Durant's ass and expecting (hoping) that he'll take you seriously?

    Priceless.

    He's a politician. He was supported by Clemence, Clark and Nikolla. Why do you suppose that is?

    You're right, let's be fools and hope he will be fair.

    You have a better chance of Ron Paul becoming a Hooters girl.

    ReplyDelete
  6. At 7:58 am on Dec. 14 the following email was sent by State Representative Peter Durant (R – Spencer) to the members of the Charter Review Committee and Southbridge town manager Clark.

    Mr. Martinek,

    Thank you for you comments. To address your points:

    •House counsel has reviewed the legislation as I noted when I wrote "written by my office and House Council".
    •The legislation was sent to Mr. Clark so that he could review it to make sure nothing was missed inadvertently, in other words to make sure it is technically correct. This is in an effort to be thorough before filing it.
    •The reason it will be filed soon is to make sure that the legislation has the proper time to work its way through the legislative process since there is a deadline for making sure something appears on the ballot. Prudence dictates that it be filed. If the process of making the charter changes was somehow flawed, and somehow done improperly the legislation can be stopped. If however the filing is delayed and no problems are found then the legislation may not have time to complete the process. Common sense says that the proper action is to file it now.
    •Finally, these are charter changes voted on by the duly elected legislative body of your town, unfortunately, the fact that you do not care for the majority of the councilors and the town manager does not automatically make the process suspect. State government does provide for the necessary checks and balances in these issues and my review, along with other avenues are available to you should you desire.
    I can assure you that, just as I take the vote of the council seriously, I take the comments of the Charter Review Committee seriously, and I will thoroughly review the issues that the Charter Review Committee has brought forward. Thank you again for contacting my office. If you have any further questions or comments, please feel free to contact me.

    Best regards,
    Peter Durant
    State Representative
    6th Worcester District

    ReplyDelete
  7. At 8:58 am on Dec. 14th, Dennis Martinek responded to Representative Durant (R – Spencer) as follows:

    Pete,

    - House counsel reviewed the legislation, but your inference is that you're waiting on non-attorney Clark to respond with his "technical review". Surely if you can wait for his self-serving approval, you can consider the letter from the people that actually participated in the review process for over a year. Clark's "review" includes a recommendation to make his removal more difficult. As I said, self-serving.

    - Mr. Clark making sure it's technically correct? You're asking a man who thinks that the town By-Laws trump the Charter. Not thorough before filing it. If you were thorough, you would be looking at our recommendations first. What's the hurry to get it on the June ballot? See above.

    - Prudence dictates that it doesn't violate our Town Charter, but neither you nor Mr. Clark seem to care about the details in "archaic" documents like the Town Charter, or that other old document, the Constitution.

    - Glad to see your pipeline to your big supporter, Councilor Clemence, is still intact. No, I don't respect a legislative body that spent two hours reviewing what we spent a year going over in detail. The Chairman of the Committee who blasted our efforts? He never once went to a Town Charter Review Committee. Not once, yet he told everyone of our "political agenda". No, we didn't and don't have a record of ignoring the Charter, as do they, which is why a thorough review of their activity is a must. And you're wrong, it makes it entirely suspect.

    Don't worry, I don't expect anything from you other than your trying to complete your quid pro quo for your Southbridge Town Council/Manager supporters, in making it more difficult to remove the Town Manager, among other things, as a thank you for their help.

    Anything less would be shocking.

    I'll ask the House Counsel to investigate any misgivings or quid pro quo in your pushing this through with a "thorough" review by your friends, and not the people that YOU don't like or support, including myself, that actually spent the time reviewing and making recommendations, not in mere hours, but over a year.

    Regards,
    Dennis

    ReplyDelete

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