Allegations of Misconduct

Over the past several days, a number of substantial allegations have been leveled against the Board of Selectmen by a co-sponsor of a ballot petition seeking revocation of the Community Preservation Act. This citizens’ initiative will appear as Question 4 on the Ballot.  Local blogs are replete with allegations of misconduct being leveled against the Sturbridge Board of Selectmen.

As an individual member of the Board, not presuming to represent any formal position of the Board, I am compelled to provide a response. In so doing, it is important to note that I personally maintain a great deal of respect and admiration for those willing to challenge government in an effort to obtain the highest in legal, ethical, and moral practices from same. To that end, I am grateful for this resident’s efforts to demand the absolute best from us.

That said, I believe it equally important for those who expect the highest in standards from government, demonstrate same in pursuit of those principles. Thus, one would hope that any allegations or charges brought against government officials would be grounded in fact, law, or substantive actions or inactions as it relates to their responsibilities. In recognition of this reasonable threshold, it is somewhat disquieting that the allegations thus far made, have been so done void of a practical basis for same. 

It has been alleged that “our local government has usurped the power of the people” by not “allowing Town Counsel to write the ballot question” for the petitioners “while also setting a precedent for other petitioners who want to bring ballot questions to Town Elections”. In fact, one has been unable to identify any law that requires the taxpayers of a community to bear the burden of writing petitioned ballot questions for individual residents, nor is there any language in the Sturbridge Town Charter or General Bylaws that provisions for individual resident access to Town Counsel. Surely, were Town Counsel to become the legal service for each and every resident with respect to individual ballot initiatives or petitions, the cost would be well beyond our current allowance, as provided by the Legislative Branch. 

To that point however, if residents in this community believe it appropriate to provide legal services for individual citizens’ petitions, the appropriate course would be a Warrant Article submitted before the voters at Town Meeting seeking their approval, as well as a dollar amount specific to same. Should such be the will of the voters at Town Meeting, then clearly the Board of Selectmen would be legally required to allow taxpayer funds to be exercised by individual residents for individual petitioned articles. As it relates to assertions of a precedent being set, clearly that “precedent” has been set by the State well before many of us became politically active by way of the absence of laws dictating such. Equally, our Town Charter and the General Bylaws have already established a “precedent” by way of their silence on this matter. 

The allegations go on to state that “they denied allowing Town Counsel to write the ballot question, saying it would cost money” and that it was “recommended that we find our own attorney”.  It is true that we denied the petitioners access to Town Counsel as we are not legally able to do so, void any Charter change or General Bylaw that would allow such. We clearly stated that we did not have the authority to allow individual resident access to Town Counsel. We also directed the Town Administrator to provide some guidance in terms of avenues of information to the petitioners, which he did the following day by way of an email copied to the Board. 

Additional assertions state that “they’ve spent the money on Town Counsel they said they didn’t want to spend when we asked them to write the ballot question; they rewrote our NEUTRAL ballot question without our knowledge; and the rewrite includes that “Rescission…sentence, which we view as an absolute outright lie”. To be clear the Board of Selectmen have no authority over election ballots as they are under the purview of the Chief Elections Officer of the Town, in this case the Town Clerk; thus, we (the BOS) did not spend money we “didn’t want to spend” as it was not within our decision, authority, or responsibility. More importantly, Massachusetts General Law Chapter 54, Section 58A states that whenever a special act is submitted for acceptance to the voters of a city or town “a fair, concise summary written by the city solicitor or town counsel must appear on the ballot”. Thus, the petition itself was not a special act or legal question to be put before the voters until it was signed by the required number of registered voters and certified by the Town Clerk. To that end, Town Counsel does not become part of the process of a citizens’ initiative until a certified question has been presented to them for placement on the ballot. As required by law, the Town Clerk then forwarded the certified question to Town Counsel to construct a “fair, concise summary” in compliance with the law.

The allegations go on to state that “the town didn’t tell anyone about this – we just found out by accident”. It is important to note here that the “Town” followed the letter of the law and as such there was nothing to “tell anyone”, nor to my knowledge did anyone on the BOS have any reason or cause to inspect the ballot once it returned as it is not under our jurisdiction. In terms of the Town Clerk, I would not personally expect that she would have had any reason to personally “tell anyone about this” either, as she followed the law and accepted what Town Counsel provided her consistent with the General Laws of Massachusetts. Equally, the Ballot was properly posted as required by law and was also on the Town’s website for inspection and review. Thus, it is fair and quite reasonable to in fact suggest that the Town Clerk actually told everyone.

The individual leveling these allegations then states that “Most importantly, we followed the law and requested that Selectmen hire Town Counsel to write our CPA ballot question as required by the State Elections Division at the Secretary of State’s office. Selectmen denied us that right, they denied our right to due process, and they used sabotage and subterfuge to turn our NEUTRAL ballot question into a confusing, illusory piece of legalese”. In terms of the law, I have previously stated one can identify no law in existence at either the State or the local level requiring the Town to provide legal services to individuals petitioning for action within a community. Thus, no one was denied their “rights or their right to due process”, nor did the Selectmen use “sabotage and subterfuge to turn our NEUTRAL ballot question into a confusing, illusory piece of legalese”, as we did not have any input with respect to the wording, nor for that matter, did the Town Clerk. 

Suggesting otherwise would mean that members of the Board of Selectmen engaged in discussion or action on this matter outside of a duly called public meeting, which if true, would be a violation of the Open Meeting Law. I can state categorically this never happened, nor am I aware of any Board members who had any input with Town Counsel on this matter with respect to their legally bound duty to write the summary. That said, if this resident believes otherwise, I would sincerely and respectfully encourage her to file an open meeting law complaint with the Attorney General’s Office or the Massachusetts Elections Division to ensure that this matter is addressed swiftly and definitively. 

One final bit of evidence offered by this resident is a correspondence she provides on various blogs from Kathleen Colleary, Chief of the Bureau of Municipal Finance Law for the Massachusetts Department of Revenue, which provides guidance on what happens with revocation of the CPA. It appears, in terms of my assessment, to be presented by this individual as a direct rebuttal by Ms. Colleary against the summary as drafted by Town Counsel. To be clear however, such is not the case as Attorney Colleary has reviewed the ballot question and its summary as drafted by Town Counsel and provided the Town of Sturbridge by way of Town Counsel the following opinion on Friday, 23 March 2012: 

Dear Ms. Goldberg:

I reviewed your analysis and believe that the proposed ballot summary is "fair and concise." 

We agree that a fair and concise summary does not have to include a detail analysis of all consequences of revocation.   The sample acceptance summary provided by the Elections Division of the Secretary of State is instructive in that regard.  It explains that (1) the statutes being accepted establish a dedicated Community Preservation fund for various open space, historic and affordable housing purposes; (2)  the funding source for that fund will be a local surcharge and state matching distribution; (3) the local surcharge rate and exemptions that will be in effect; and (4) the general process for making spending recommendations from the fund.   It does not go into detail about the operation of the fund, other sources of monies for the fund, the authority to commit fund monies to debt service for allowable projects, the manner by which the surcharge rate and exemptions may be amended or acceptance revoked.

Your proposed summary is similar to that model and includes the specific surcharge package that was adopted by the town.  It then goes on to state the consequences of revocation, i.e., that the town will no longer assess the surcharge (and receive matching fund)s, except to the extent the law so provides in order to meet the obligations of the fund.  It seems to us that is the key consequence of revocation, just as the imposition of the separate CPA surcharge (a tax) to raise funds for particular purposes was the key consequence of acceptance.  We also agree that the requirement of a "fair and concise" summary is not intended to provide voters with all information about the referendum.  In this election, as in others, the voters will have access to various sources of information - the arguments of proponents and opponents and other materials - to assist them in forming their opinion.

Very truly yours, 

Kathleen Colleary, Chief 

Bureau of Municipal Finance Law 

Division of Local Services 

Department of Revenue 

It is clear in reading this correspondence, that the Department of Revenue sees no issue with the Ballot as prepared by Town Counsel and in fact supports the language as written. To be sure, my service to this community has demonstrated that I have never been reluctant to challenge opinions offered by Town Counsel in any situation where I have been able to identify statutes, precedent, or language within our Town Charter or General Bylaws that suggested an opinion offered by them had inherent weaknesses. That same standard was applied here, in that once the issue was raised, I undertook intense research to identify any weaknesses in the opinion offered by Counsel. I submitted a number of questions and challenges to our attorney and others at the State level and each challenge came back clearly in support of the approach undertaken by Town Counsel.

As I have spent the last 5 days actively and thoroughly examining, researching, and critically reviewing this matter, and in light of the numerous conversations I have had with the principals involved - as it relates to government officials and representatives at the State level - I am completely confident that this matter has been properly, objectively, truthfully, and factually vetted and that the allegations made as it relates to the Board of Selectmen and/or the Town of Sturbridge by one of the co-sponsors of the citizens’ ballot initiative - have absolutely NO merit or basis in fact. As such, the issue is completely closed as it relates to my position as an individual member of the Board. 

Once again, I thank the individual who has raised these concerns as I believe that it is important to address any irregularities or the perception thereof in a most direct and immediate manner. To that end, we are all better served when these issues are publicly discussed and openly vetted, as our democracy is dependent upon such. With that in mind, all residents can be assured that regardless of the individual or collective positions Board members may have on this or any issue, the results of the vote will be quickly implemented and supported as they will then represent the manifest will of the voters. Let us hope that all sides of this issue will similarly assert themselves.