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Town charter under attack

May 12, 2014

What does the word “shall” mean to you?

To me, it means exactly what it is defined as, in the Merriam-Webster dictionary – “used to give a command or to say that you will or will not allow something to happen.”

Sounds pretty straightforward to me.

In the real world, I have never heard the term “shall” ever used in a context that isn’t either a command or a question.

We see the word “shall” in such phrases as “thou shalt not kill” (albeit, an archaic form of the word) and “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In the form of a question, you might hear the word as “shall I proceed as if nothing happened?”

But an utterly laughable, and, in my opinion, incorrect, definition of that innocuous word has effectively rendered our town charter – our town’s governing Constitution – utterly unenforceable, so say (in a matter of words) our Town Counsel and Town Moderator.

Town Meeting Representatives voted on the school department’s $38.8 million budget request last Monday evening, despite the protest of Selectman and RTM Cliff Snuffer, who questioned whether the town charter required that RTMs be provided a copy of the recently-ratified teachers’ contract at least seven days before they voted on the school budget that included funding for that contract.

Section 2-12 of the Walpole Town Charter states that “at least (7) days before the session of town meeting at which any collective bargaining agreement is presented for approval or funding, the Town Meeting Representatives and Board of Selectmen shall be furnished with a written summary explaining the revisions contained in that agreement.”

Per state law, teachers’ collective bargaining contracts are the only town union agreements that RTMs are not allowed to vote on approval of. Snuffer said, though, that because the school budget was “funding” that contract, RTMs had a right to see the contract within the time frame stipulated by the charter. No RTMs have ever been provided a copy of that contract, though it is posted online and is available as a public record.

Town Counsel Ilana Quirk conceded to Snuffer that, yes, the town charter did technically indicate that RTMs should be able to see a copy of the teachers’ contract at least seven days before voting on the school budget, but that the word “shall” doesn’t really have any enforcement powers behind it, so RTMs can still proceed anyway.

In subsequent legal opinions in the days that followed from both Quirk and the school district’s own legal counsel, Quirk eventually seemed to backtrack from her statements at Town Meeting, stating that she did not believe RTMs had to be provided with the teachers’ contract, because Town Meeting does not have any jurisdiction over funding the teachers’ contract, due to the state law giving the School Committee total autonomy over contract ratification. That, of course, opens up another can of worms over the precise definition of the term “funding,” as stated in section 2-12 of the town charter.

But even so, even more disturbing, Quirk, in an opinion written to Town Administrator Michael Boynton a few days before Town Meeting, stated that RTMs also could vote on a firefighters’ contract, under Article 27, even without that properly required seven-day notice.

“While Charter 2-12 sets [forth] an expectation that a negotiated collective bargaining agreement shall be furnished to Town Meeting and filed with the Town Clerk seven days in advance of presentment of the agreement to Town Meeting for approval, Charter 2-12 does not set forth language that would prohibit Town Meeting from acting as to Article [27] if the town is unable, or fails, to furnish or file the agreement within the expected time frame,” Quirk wrote.

Quirk cited the 1939 court case Young v. Westport, in which a Massachusetts judge ruled that even though the town of Westport Finance Committee had failed to hold a public hearing on the town budget before the Westport Town Meeting, as required by the town charter, Town Meeting still had the power to proceed as if nothing happened. The court found that unless a provision in the town charter has enforcement mechanisms in place, there is nothing stopping the town from ignoring that provision as they see fit.

In other words, the word “shall” has no meaning, unless accompanied by an “or else.”

Perhaps the most chilling part of Quirk’s written opinion to Boynton was an entire paragraph devoted to explaining why the word “shall” doesn’t actually mean what it says, in the context of government-speak.

“Courts have repeatedly held that the term ‘shall,’ when used with reference to time periods for action by governmental officers, does not necessarily have the mandatory meaning that this term has in other contexts,” Quirk wrote. Quirk cited a number of previous legal cases, in which various courts have ruled that the word “shall” for government officers is “directory, and not mandatory.”

In one previous court decision, Quirk stated that the court ruled that there was “an essential difference between statutory directions to public officers and private persons,” when using the term “shall.”

Who would have ever thought that there is a distinct difference between bureaucrats and regular folks like us when it comes to the meaning of certain terms? How far up in levels of government do these differences go, and to which other terminologies do they extend?

This bizarre interpretation of the word “shall” was upheld by Town Moderator Jon Rockwood last Monday, who permitted Town Meeting to proceed to vote on the school budget. Rockwood did not allow RTMs to vote on that decision, and neither Snuffer nor anyone else ever submitted a substitute motion or any other measure on the charter issue.

In allowing Town Meeting to vote on the school budget, Rockwood and Quirk essentially signaled that the town charter – and even bylaws – are unenforceable in their present form. The charter and bylaws are loaded with the word “shall” – 496 instances, in fact. Every single use of that word needs to be reviewed and potentially scrapped and replaced by something more meaningful – whatever that word may be. Maybe the word “must” will have a little more kick to it, although I am sure that a few years down the road, Quirk or some other well-paid town attorney will be able to dig up an obscure court case from long ago that states that even that word, too, is meaningless. Perhaps Quirk should be tasked with coming up with a list of all words that are safe to use in the town charter, and all words that can potentially be twisted in meaning.

What makes this so dangerous is that the whole point of the town charter goes out the window when a simple word like “shall” doesn’t mean what it is supposed to mean. Obviously, when the last Charter Review Committee reviewed the town charter in 2004, just about everybody in town government envisioned that the provisions in the charter would be followed and that there was no reason to have any enforcement mechanisms, because, well, the word “shall” is in there.

Of course, this is not the first time that Walpole RTMs have dealt with controversy over the use of the word “shall” in the town charter. Many RTMs became very familiar with Young vs. Westport back in 2012, when the Walpole Finance Committee failed to hold a public hearing at least three days before a Special Town Meeting, as required by the charter.

At that Town Meeting, just like last week’s, Town Counsel ruled that RTMs could proceed even without the proper public hearing. Following that, some politicos, including this journalist, argued that doing so set a precedent that the town charter can be ignored for the sake of political expediency.

In the weeks afterward, a certain Finance Committee member, now a candidate for Selectman, along with an Assessors Board member who is now also an RTM himself, authored several diatribes in The Walpole Times insisting that no precedent was being set and that those who opposed the Town Counsel’s ruling were just being roadblocks attempting to prevent the appropriation of the $3 million property tax override.

That Finance Committee member, named Sue Lawson, wrote in one of her pieces: “Obar claims that: ‘Town Meeting showed that provisions of the town charter can be ignored if considered inconvenient.’ However, Obar has presented not one shred of evidence that this is the case. … How does this constitute a disturbing precedent?”

Of course, this is what this journalist wrote in response:

The nature of a precedent is that as soon as it happens, it becomes an example that can be repeated. Before Town Meeting, no RTMs or residents would ever think that Town Meeting could ignore the charter as they did in this case. Now that they have done it, they know they can do it again and get away with it. Even if neither Lawson nor [Assessors Board member Jack] Fisher can envision it happening under this particular Moderator, Finance Committee, or Town Meeting body, future town officials can look back on this Town Meeting and realize that public hearings on the town budget really aren’t necessary after all.
Even Moderator Jon Rockwood, in an interview shortly after Town Meeting, conceded that a precedent has been set and public budget hearings could conceivably be never again held, even if this doesn’t happen in the immediate future.

Well, two years later and looking back on that incident and last week’s incident, it is pretty apparent that, indeed, a pretty bad precedent was set, even if it was not specifically on the public hearing issue. Now that town officials know that they don’t technically have to show RTMs copies of collective bargaining contracts at least seven days before Town Meeting, who is to stop the Board of Selectmen from giving RTMs these contracts at the last minute? Doesn’t this defeat the whole point of the charter in the first place – to ensure good government, and a fair, responsible Town Meeting that has proper time to review the issues they will be voting on that affect every taxpayer?

RTMs really ought to give some serious thought to what happened last Monday, and get behind a serious effort to reform the town charter, which has been a long time coming.

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