Systemic Accountability Part 3A: Anatomy of a Special Town Meeting.
By Archie Mazmanian • Aug 10th, 2008 • Email This Post to a Friend •
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Part 3 of this Series (here) hopefully served as a tongue-in-cheek appetizer for this Part 3A and subsequent Parts commenting on Town Meeting.
Brookline, with its Representative Town Meeting (“RTM”) form of governance, is required to hold an Annual Town Meeting (“ATM”), usually in May. As Brookline’s population has increased to 55,000+ and its annual budget to $200 million, the ATM has not sufficed for Brookline’s legislative needs. This has resulted in recent years in a Special Town Meeting (“STM”) in the Fall. Some years ago, an STM would be reserved for zoning amendments back when zoning changes were not an annual sporting event as seems to be the case in recent years.
A Legal Notice in the Brookline TAB on July 25, 2008 informs us that this Fall’s STM is scheduled for November 18, 2008, and that the Warrant schedule provides for the “Opening of Warrant” on Thursday, August 7, 2008 and the “Closing of Warrant” on Thursday, September 4, 2008 (by 12:00 noon). The Notice further states: “Articles must be filed in the Selectmen’s Office and be accompanied by a statement of explanation of the same.”
The Town’s new consolidated Web site provides a link to “Submitting Articles” explaining the procedure for the submitting a Warrant article, including: “It is recommended that articles be submitted to Town Counsel to review issues of legality and form.” While Town Counsel’s office may be helpful, it should be understood that the voter submitting an article (“under the signature of ten registered voters”) most likely would not have an attorney/client relationship (including confidentiality) with Town Counsel’s office. Town Counsel may consider a so submitted article’s contents in a Brookline political sense and alert Town officials (Selectmen, Town Administrator, Department Heads and Managers) of a proposed article and perhaps discourage, in certain instances, its submission for inclusion in the Warrant.
This Fall’s STM provides an opportunity, in real time, to visitors to this Blog to examine the operation of RTM in Brookline. Following the Closing of Warrant, articles that have been timely submitted will be available for public review. But of greater interest are the reviews of Warrant articles at public meetings of both the Selectmen and the Town’s Advisory Board (which is appointed by the Town Moderator). Many such public review meetings will be held following the Closing of Warrant on September 4th to the November 18th Fall STM presided over by the Town Moderator.
I plan to follow the progress of this Fall’s STM, somewhat in real time, even though a period of three plus months is involved before the curtain rises on this production in the High School Auditorium. I plan to add comments from time to time to this Part 3A before Part 3B is posted in early September. Hopefully the Town’s new consolidated website will provide further guidance. Meantime, I hunger for a tongue sandwich on light rye with brown mustard and a Dr. Brown to fortify me as I (hopefully with your company) explore the Anatomy of this Fall’s STM.
Archie Mazmanian is lives in Brookline and is a frequent contributor to On Brookline.
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TESTING TRANSPARENCY WITH WARRANT ARTICLES
How would we know if a Selectman, with or without the knowledge of a fellow Selectman or the Town Administrator, contacts a Department Head/Manager or a member of a Town board/agency on a matter of Town business? Do Brookline Bylaws provide for some sort of disclosure of such contacts that might benefit its public?
The Board of Selectmen (“BOS”) functions under the Open Meeting Law, including its requirement for public notice of its meetings. While a Selectman may think he/she is providing a constituent service by making such a contact, might such be perceived as undue influence? What is the impact of such contact upon a Department Head/Manager or board/agency member? Should the latter create a record of such contact, not solely for “CYA” purposes, but to establish a public record within the letter and spirit of the Public Records Law?
Such contact might be made in writing, including electronically, in which case the Public Records Law should permit, upon a request, disclosure and thus transparency. But a contact by telephone or in person may not generate an accessible record. So perhaps there should be a requirement that a Department Head/Manager or a board/agency member maintain a log of such contacts accessible under the Public Records Law.
The question may be raised as to why s Selectman might make such a contact, particularly where the BOS has not publicly taken a position on the subject matter? While there may be legitimate reasons, there could also be impropriety. After all, a Department Head/Manager relies upon the BOS for job evaluations, promotions, salary increases, perks, etc., and a member of a board/agency relies upon the BOS for a desired reappointment.
Ten (10) registered voters could take advantage of the Warrant procedure for this Fall’s STM by submitting a Warrant article addressing the above. Then there could be discussion after the September 4, 2008 Warrant Closing Date at public meetings of both the Advisory Board and the BOS of a Warrant article requiring the maintenance of contact logs in furtherance of transparency in Town governance in Brookline. So are there ten (10) brave registered voters out there?
Additional suggestions for Warrant articles improving transparency will appear in subsequent comments. Hopefully ten (10) taxpayer groups of registered voters may contribute their own suggested transparency Warrant articles. Perhaps before the September 4, 2008 Warrant Closing date together we can come up with a “TOP TEN TRANSPARENCY WARRANT ARTICLES” list in the manner of David Letterman. If they reach this Fall’s STM, then we can see just how TMMs will react to them and the recommendations of the Advisory Board and BOS with respect thereto. They all might have a preference for “I’ve Got a Secret.”
“HI, THIS IS SELECTMAN ________”
Imagine you are a Brookline Department Head/Manager or a member of a Town board/agency and you hear the captioned words. What flashes through your mind in anticipating the purpose of the contact? How do you react?
If Brookline were a city and you were contacted by the Mayor, you would realize that the caller is the leader of the Executive Branch. But here in Brookline with RTM, you are aware that the BOS, consisting of five (5) Selectmen, constitutes the Town’s Executive Branch, and that the BOS functions under the Open Meeting Law and what that Law entails; that a single Selectman cannot be assumed to be speaking authoritatively for the BOS.
So what is the purpose of the contact? Does it seek general information or information specific to an issue you are or may be addressing? If “specific,” are there any professional limitations on how you may respond? Might you consider the need to disclose this contact to the Town Administrator or to one or more of the other Selectmen to bet a better idea or some comfort about what is involved? Should you record, by means of a memo or otherwise, this contact in the event that at some later date it, or its subject matter, becomes an issue that has to be publicly addressed, whether by you or other Town officials? Might you consider taking advantage of the Town’s Whistleblower Policy with the thought of thwarting potential retaliatory action against you?
You may be coming up for a performance review, a salary increase, job promotion, reappointment, etc. So you may have economic and/or professional concerns as you contemplate your response to Selectman _________. Make sure you have pen or pencil and paper handy.
DO SELECTMEN AUTHORIZE AND MONITOR TOWN COUNSEL NEGOTIATIONS WITH THIRD PARTIES IN COMPLIANCE WITH THE OPEN MEETING LAW?
This may seem like a strange question. (Bear with me as it leads to a Warrant article suggestion at the end.) Consider Tuesday’s (8/12/08) BOS meeting/hearing concerning this Calendar item:
“GRANT OF LOCATION
“Public Hearing on the question of approving the petition of NextG Networks of New York, Inc., for permission to construct, and locations for, lines of conduit and manholes with the necessary cables in various locations throughout the Town.”
In the course of the NextG presentation, references were made to certain matters being negotiated with Town Counsel, including compensation to the Town for the use of Town facilities that may be included in the proposed project, if approved by the BOS. It appears that this matter was on the Calendar before Selectman Dick Benka’s election in May. Apparently Benka’s Selectmen’s Package for this BOS meeting did not include sufficient background, as a result of which he requested NextG’s spokesperson forward its earlier Powerpoint presentation as well as this meeting’s. Chair Daly did not seem well versed on the subject and put off a vote. Selectman DeWitt raised some issues. Selectman Mermel was silent, as was Selectman Allen (who may have been absent). And Town Administrator Kelliher did not seem to join in.
Town Counsel Dopazo offered limited testimony but did acknowledge that her office was negotiating certain matters with NextG. There were a few public comments (including a most unusual one calling for the Preservation Commission to be involved where the project runs through a Town historic district).
When Town Counsel sits down to negotiate with a third party on a Town matter, who in the Town provides her with the authority, and on what terms, to negotiate? Is Town Counsel instructed by the BOS? If so, this would have to be in compliance with the Open Meeting Law (which may permit, under specified circumstances, for Executive Session) under Brookline’s RTM form of governance. Or perhaps the Town Administrator authorizes, monitors, directs, Town Counsel in such negotiations. But shouldn’t the BOS in turn authorize, monitor and direct the unelected Town Administrator in compliance with the Open Meeting Law?
Or does Town Counsel negotiate to the best of her ability, with assistance from the Town Administrator and various Department Heads/Managers, subject to the eventual approval by the BOS in compliance with the Open Meeting Law?
This conundrum seems to flow from the requirements of RTM. In a city form of governance, a mayor could meet, privately, with the City Solicitor, in advance of and during negotiations with a third party to make sure that the city’s Executive Branch is on top of the negotiations. In Brookline, with the restrictions of RTM, however, the BOS (Brookline’s Executive Branch consisting of five Selectmen) functions openly, in public, except in those specific instances when Executive Session is permissible.
Based upon what I observed in watching this week’s BOS meeting/hearing, it doesn’t seem that the BOS has provided negotiation specifics to Town Counsel for this proposed project. If this is correct, does this suggest that Town Counsel’s negotiations are from the seat of her pantsuit?
Selectman Benka has extensive large law firm experience in negotiations that might well serve the BOS. While a negotiating attorney uses his/her own experience and intellect in the course of negotiating, he/she usually frequently consults with the client on the status of negotiations, to make sure that the client’s requirements are being addressed. If Town Counsel were to consult in a similar manner with the BOS, it would seem that RTM would require compliance with the Open Meeting Law. So, is Town Counsel frequently consulting with the BOS on this proposed project? And if so, is the Open Meeting Law being complied with?
From the standpoint of NextG, it may have concern that what it thinks has been agreed upon in negotiations with Town Counsel may not be approved by the BOS, in whole or in part. The documentation for this proposed project would appear to be complex, with significant public law issues, including federal, to be addressed. Perhaps RTM does not permit for addressing modern complex transactions that well.
Since this is the Warrant article open season (which closes September 4th) for this Fall’s STM, perhaps there are ten (10) brave registered voters ready to take a crack at an article addressing the manner in which Town Counsel is to be authorized and managed by the BOS for negotiating complex transactions. Such an article, in the course of review by the Advisory Committee and the BOS, might place on their tables the manner in which the Town’s negotiations resulting in the Webster Street hotel ground lease and the B-2 parcels ground leases and agreements were conducted, especially identifying the Town officials conducting such negotiations and the roles of the BOS and individual Selectmen. We all know how well these deals turned out for Brookline.
ZONING WARRANT ARTICLES?
If you are interested in upzoning or downzoning the zoning district in which you reside to either expand your home or limit neighbors from expanding their homes, you might consider submitting a Warrant article during the open season (that closes September 4th) for this Fall’s STM. But you would be SOOL if you failed to first comply with Chapter 40A (the Zoning Statute), Section 5. If this is the case, then you will have to wait until next year’s Annual Town Meeting, provided that prior thereto you have taken the steps to comply with Section 5’s requirements for a zoning change for consideration at the Annual Town Meeting.
EMINENT DOMAIN WARRANT ARTICLES?
Are you concerned with how a neighbor might develop his/her privately owned open space that might impact upon your open space, and the value of your home? Well, think of convincing nine (9) registered voters to sign onto your eminent domain Warrant article. The fact that you are an abutter or an abutter to an abutter to the subject property shouldn’t deter you from taking pre-emptive action. Of course you would have to convince the Advisory Board and the BOS that your motives are purely in the public interests of our Town and that any specific personal benefit (financial or otherwise) to you is irrelevant or insignificant, so that you might have a chance with STM. You might consider engaging the services of an attorney, e.g. a former Selectman, to guide you through the process.
But time is fleeting as the Warrant closing date (September 4th” in only about two (2) weeks away. If you fail to take this pre-emptive action you run the risk that your neighbor may spoil your view – as well overdevelop his or her site – before next year’s Annual Town Meeting. While the article, if adopted, would cost the Town money (because of the 5th and 14th Amendments), your share as a taxpayer in a Town of 55,000+ would be peanuts in comparison to the benefits you would get.
The tough part will be coming up with a public reason for the taking. That’s where a former Selectman attorney may come in handy. Maybe there is an endangered specie on the site or a touch of wetland nearby. Check with Town Counsel’s office for a recent precedent for such a Warrant article.
HISTORIC DISTRICT WARRANT ARTICLE?
If you do not live in a local historic district in Brookline, perhaps you may have had occasion to be hysterical about (1) how some neighbors may have been making changes to their homes that do not require going through the zoning process or (2) how buildable lots in your neighborhood might be developed, all of which might impact upon the style of your neighborhood and perhaps the value of your home (at least as perceived by you). Unfortunately filing a historic district warrant article for this Fall STM during the current open season (which closes September 4th) to establish your neighborhood as a local historic district may not be available. First, there has to be compliance with the procedures set forth in General Laws Chap. 40C, Section 3, before Town Meeting may consider it.
Or if you wish to expand or reduce an existing local historic district, Section 3 would have to be complied with in similar fashion.
So if you are or may become hysterical, start the ball rolling now with Section 3. After all, we can’t have enough local historic districts (now up to five) in our Town. In fact, with Brookline Exceptionalism, shouldn’t the entire Town be one humongous local historic district to benefit all of us and avoid hysteria as a result of libertarian instincts of a neighbor to do with his own property as he wishes?
BROOKLINE RESIDENCY REQUIREMENT WARRANT ARTICLES?
The Brookline TAB’s lead article for August 21, 2008, focuses upon a Warrant article recently submitted that would amend a Town rule “which requires the town to hire a new chief from the [BFD] rank and file.” The goal of this Warrant article is “so the fire chief could be hired on the same basis as any other department head.” The TAB quotes petitioner Fred Lebow: “It’s just improving your odds of getting the best guy.”
Why not counter this Warrant article with ones that would require all department heads to be similarly restricted as the fire chief? Keep in mind BROOKLINE EXCEPTIONALIS. While “nationwide” searches for the best and the brightest may seem excellent in theory, how have such searches worked in practice here in Brookline? [Note: It did work with the hire of Bob Duffy as Director of Planning, who departed after several years of real good service for warmer climes perhaps because the insider Brookline political heat was much more intense upon his outsider status. But this exception does not necessarily “prove the rule” for nationwide searches here in Brookline.]
If Brookline department heads resided, owned homes, in Brookline, they might be a tad more attentive at budget time. Town Administrator Kelliher lives just across from Brookline in West Roxbury and the property taxes on his home are significantly lower than comparable Brookline properties. And because he lives out of Town, he has a lucrative car allowance arrangement in addition to a lucrative salary.
The TAB points out that other department heads are hired from within our Town even though there are no similar hiring restrictions as in the case of the fire chief. For example, BPD Chief O’Leary “was picked from among the ranks despite a competing pool of 109 applicants.” And Town Counsel Dopazo came from the ranks of Town Counsel’s office. Were these appointments made after truly “nationwide” searches or might there have been just a tad of the parochial involved? But the BFD does not seem to be in much favor with the BOS and certain other Town officials, whereas the BOS and certain other Town officials seem enamored of the BPD and its protection.
So before the open season for the Warrant for this Fall’s STM closes (September 4th), get creative on restrictions for all, or some, of out department heads. Then we’ll get an airing of the issues at public meetings/hearings of the Advisory Board and the BOS. Just maybe BROOKLINE EXCEPTIONALISM may be examined with a fine tooth comb. But remember, it take only ten (10) registered voters to submit a Warrant article.
[Caution: A Home Rule Petition may be required for certain Town positions.]
A WARRANT ARTICLE REQUIRING PROMPT PUBLIC ACCESS TO WARRANT ARTICLES FILED
I checked the Town’s website to try and identify Warrant articles that have been filed to date to get an idea of what STM may be considering this Fall. Alas, there does not seem to be a link to such. Perhaps this is because the Warrant articles open season hasn’t closed as yet. (It closes on September 4th.)
I then wondered how the Brookline TAB got a hold of the Warrant article I discussed in the preceding comment. Perhaps its petitioner, Fred Lebow, disclosed this to get advance publicity for his cause. While this is most likely not illegal, it does seem a little pushy. Perhaps there is more to this than meets the eye, e.g. an orchestrated movement by Town “insiders” (aka, the “usual suspects”) to prep TMMs in advance of an anticipated battle for an article that has not been successful in recent years.
So perhaps to provide greater transparency and a level playing field, there should be filed a Warrant article requiring the Town to make available publicly, preferably via its website, Warrant articles promptly after they have filed with the Town (even though the open season has not closed).
Perhaps some may object because of a hope for privacy or concern that disclosure might result in the filing of a counter Warrant article. With open, democratic governance, transparency is essential to prevent the “usual suspects” – and you, and we, know who you are – from gaming the system, especially our antiquated RTM, to their advantage. These objections would be, to put it mildly, undemocratic.
There is only one week left – and one of the days is Labor Day – to get cracking on filing a Warrant article requiring prompt public disclosure of Warrant articles following their filings. Perhaps the “usual suspects” may game the system and wait until the last day to file. That’s fine. At least the playing field would be more on the level.
Regarding the TAB’s role, I wonder if it has a policy on publishing copies of Warrant articles furnished to it, or commentaries thereon, such as to avoid being used by any of the “usual suspects” to game the system. Or did the TAB focus on Fred’s Warrant article because it was urged to? Would the TAB provide comparable coverage for any petitioner who provided the TAB with a copy of a Warrant article at such an early stage?
SELECTMEN’S TAXI MEDALLION WARRANT ARTICLE
Today’s Brookline TAB (8/28/08) has another Warrant article scoop even though the open season on Warrant articles has not closed as yet. (Political junkies, it closes September 4th.) I wonder if this filing will attract campaign contributions for next May’s elections for two (2) BOS seats?
There is apparently no “plan” as yet for distribution of medallions. But the dollar signs – references to $100,000 per medallion – suggest that mucho dollars will come into play during the upcoming silly season that ends with STM in November. Might this be in lieu of another override? What if the medallions are issued initially to currently licensed cab owners at no – or low – cost? If such a medallion is subsequently sold for big bucks, will the Town get a piece of the action or will it be like the sale of the Webster Street hotel?
As to Mr. Sandman (Chair of the Transportation Board), will he bring a dream to currently licensed cab owners? What may the “plan” end up looking like? Let’s keep an eye on this and follow the money to wherever it leads. Oh, and might this result in higher fares for taxi trips? Will Brookline taxis start to look like Boston taxis?
This is the second TAB scoop on Warrant articles. The BOS is of course included in the category of “usual suspects.” Just what is the TAB policy on the reporting of Warrant articles before the open season closes? Will the TAB provide advance “publicity” to any petitioner who files a Warrant article or just the “usual suspects”?
DAY-LABORING OVER WARRANT ARTICLES?
This Labor Day weekend may give some of us stay-at-home registered voters the opportunity to generate Warrant articles for consideration at this Fall’s STM. We have only until noon on Thursday, September 4th, to file. This time limitation suggests skipping review with Town Counsel’s office.
Don’t rely upon the “usual suspects” with their special interests Warrant articles in mind. Let’s add to the menu of Warrant articles that will be picked over in public by and before the Advisory Board and the BOS up to the time of that magic November date when STM will make its decisions, guided (some might say misguided) by the Town Moderator. How better to respect RTM and to present the upcoming STM with democratically inspired Warrant articles. Yes, this is the silly season once again. But without more contributions from registered voters, how may we benefit from this study of the Anatomy of STM? We need to put a little more meat on the bones to pick at. After all, in this 21st Century, Brookline is a Town of 55,000+ that continues to honor early 20th Century RTM.
HIGH NOON, SEPTEMBER 4, 2008!
The open season for filing Warrant articles for this Fall’s STM closes at high noon, September 4th. Only a little over 24 hours remain for ten-taxpayers groups to test the efficacy of RTM this Fall – to provide the ingredients – Warrant articles – the means whereby the laws that are enacted will be seasoned, primarily by Brookline political insiders, aka the “usual suspects.” Quality laws, like quality sausages, require quality ingredients.
[In the next part of this series, the plan is to review, analyze and address Warrant articles that have been filed, including the identities of the petitioners.]