March 24, 2010
To the Selectboard -- Town of Norwich:
I was very troubled by the Moderator’s announcement -- made at Town Meeting this year -- that no discussion of pending litigation would be permitted that evening.
When we reached the warned article concerning “other business” I rose to question the legal authority that might prevent us from discussing pending litigation at Town Meeting.
In response, the Moderator read the following letter, received from the Secretary of State’s Office:
Unless there is a warned article on the warning, which I would doubt, the moderator should rule any attempt to discuss litigation as not germane and out of order.
If voters want to ask its selectboard about pending litigation, the proper request would be to the Chair of the board to place it on a board agenda. Again, I would expect that the town attorney may advise the board that pending litigation cannot be discussed with the public.
Best Regards,
Kathleen S. DeWolfe
Director of Elections & Campaign Finance
Office of the Secretary of State
After further correspondence with Kathleen DeWolfe and researching the relevant Vermont statutes, I believe her advice in this instance was a matter of misunderstanding on her part and incorrect as a matter of law.
I am writing today to clarify what I believe to be the governing law for our Town Meeting. I further ask the Selectboard to publicly disavow the substance and implication of the Moderator’s announcement at this year’s Town Meeting as an improper restraint on our right, as townspeople, to discuss the town’s business at our annual Town Meeting.
At the outset, three points:
First, this year’s Moderator, Terry Boone, is a friend and I am confident his ruling in this matter was a good faith response to the apparent authority of the communication from the Secretary of State’s Office. I am challenging the authority of the communication, not in any way denigrating the Moderator in this instance.
Second, I have no dog in the Bragg Hill assessment fight. I had no intention to address that litigation at Town Meeting or here today. I am only interested in defending the right of Norwich residents -- pro and con -- to discuss that and any other town business at our Town Meeting.
Third, as I stated at Town Meeting when questioning the Moderator, I believe it would be wise for Selectboard members and town officials party to any pending litigation to refrain from commenting during any Town Meeting discussion of pending litigation. I believe the Selectboard should state as much publicly if such a discussion occurs in the future. While it may be uncomfortable for these town officials to sit silently by while these discussions take place, it is the townspeoples’ business to consider town policy if they so choose. This is a fundamental democratic right integral to the entire concept of Town Meeting and I find it ominous there has been so little reaction to its curtailment.
At a Special Town Meeting on July 2, 1983, the townspeople of Norwich adopted voting by Australian ballot for all town and school warrant articles. The article authorizing Australian balloting itself stated that Town Meeting would be held the night prior to voting "for discussion only of the various articles on the warning agenda."
Since that time, our practice has been to hold Town Meeting on the Monday night before Tuesday voting. Our Town Meeting is presided over by a moderator who -- up until this year -- ends the Monday evening session by adjourning or recessing Town Meeting until the following morning when voting takes place. This is all consistent with existing Vermont law, specifically 17 VSA §2640(b) which states,
When a town so votes, it may thereafter start its annual meeting on any of the three days immediately preceding the first Tuesday in March at such time as it elects and may transact at that time any business not involving voting by Australian ballot or voting required by law to be by ballot and to be held on the first Tuesday in March. A meeting so started shall be adjourned until the first Tuesday in March.
and 17 VSA §2640(c) which further states,
Notwithstanding section 2508 of this title [limiting proximity of electioneering to polling places], public discussion of ballot issues and all other issues appearing in the warning, other than election of candidates, shall be permitted on that day at the annual meeting, regardless of the location of the polling place.
This is also consistent with 17 VSA §2680(g) which states,
Whenever a municipality has voted to adopt the Australian ballot system of voting on any public question or budget, except the budget revote as provided in subsection (c) of this section, the legislative body shall hold a public informational hearing on the question by posting warnings at least 10 days in advance of the hearing in at least two public places within the municipality and in the town clerk's office. The hearing shall be held within the 10 days preceding the meeting at which the Australian ballot system is to be used. The hearing under this subsection may be held in conjunction with the meeting held under subsection 2640(c), in which case the moderator shall preside.
Together, these statutes recognize that a town such as Norwich, after adopting Australian balloting, may combine the “public informational hearing” required under 2680(g) above with an extension of Town Meeting to any of the three days immediately preceding actual voting as per 2640(b) and (c), or in our case, to the night prior to voting.
Read together, the statutes clearly anticipate that our Monday evening Town Meeting “may transact at that time any business not involving voting; (§2640(b))” shall permit “public discussion of ballot issues and all other issues appearing in the warning, other than election of candidates;” (§2640(c)) and shall include “a public informational hearing on [any public question or budget]” entrusted to voting by Australian ballot (§2680(g)).
It might be argued that the more specific provisions of 2640(c), perhaps limiting discussion to “ballot issues and all other issues appearing in the warning” could be construed to limit the discussion of pending litigation such as was argued this year, on the grounds that there was no specific warned article questioning pending litigation. This argument fails for several reasons.
First, the preceding section, 2640(b), clearly anticipated that participants at Town Meeting held the night prior would have the authority to “transact at that time any business not involving voting.” Unless Subsection C explicitly limited the scope of the preceding subsection, that broader statement of authority should be given effect.
Moreover, 2640(c) is clearly intended to carve out an exception to the provisions of 2508 which would otherwise forbid political debate of these matters in the same place where voting by Australian ballot takes places. As such, it is simply not concerned with the broad statement of authority made in 2640(b) and thus cannot be intended to constrain it.
Lastly, this year, as in the past, we traditionally include a warned article -- Article 26 this year -- to “[t]ransact any other business that may legally come before the annual Norwich Town Meeting.” Therefore, even if we were somehow constrained to discussing only those “issues appearing in the warning,” we have the authority to discuss “any other business” under this warned article.
To conclude, I cannot find any legal basis to restrict our rights, as townspeople, to discuss pending litigation or any other town business at our Town Meeting.
The opinion stated by the Secretary of State’s Office addresses whether a matter not specifically warned is germane -- an important concept where articles are voted from the floor and adequate public notice of what is to be voted is a concern. We vote by Australian ballot. I discuss this further at http://norwichnavel.blogspot.com/2010/03/point-of-order.html and will spare you that repetition here.
Unless the Selectboard can offer specific legal authority to the contrary, I ask the Selectboard to publicly disavow the Moderator’s Town Meeting admonition regarding pending litigation and reaffirm our right, as voters, to discuss town business at Town Meeting, even where town officials may be constrained from participating in those discussions.
Wednesday, March 24, 2010
Sunday, March 7, 2010
School Choice and Taxes
I can't help noting the irony of Eileen's post this AM: "Willow School K-3 Open House Sunday" juxtaposed upon much hand-wringing at Town Meeting over falling enrollment at Marion Cross School (and our similarly ironic relief that Norwich' proportionate share of Dresden taxes is lower due to fewer Norwich kids in Dresden schools).Knowing Eileen and knowing the two excellent teachers behind the Willow School, I think it's important to recognize that MCS is not and cannot be the one-size-fits-all best option for all our residents' children. Parents have many choices, including home schooling. Before criticizing those families who choose private school alternatives to MCS, it's worth considering the odd injustice those families face paying private tuition on top of paying their property taxes supporting MCS.
Basing public education funding on local property taxes raises all kinds of strange inequities, particularly as a greater proportion of our school budgets are dictated by decisions made far beyond our own community. A less obvious, but ultimately more difficult, problem is how deeply invested we are in a model for public education that dates back a century ago and may be reaching its legal and fiscal limits.
On the legal front, the U.S. Supreme Court's 2002 decision in Zelman v. Simmons-Harris exposed the tenuous legal principles limiting school voucher programs. Voucher advocates for both religious and secular private schooling have been aggressively litigating to pry the door opened by Zelman wide open. A logical conclusion for this line of cases -- woven together with advocacy for school funding based more broadly than local property taxes -- is very likely a system based on vouchers for all children and our public schools being but one of any number of competitors for those voucher-supported students.
On the fiscal side here in Vermont, it's hard not to be discouraged at the local costs incurred by the principle of equal education opportunity enunciated in Brigham, codified in Act 60 and modified further in Act 68. The political pressure to limit local authority over spending appears to be growing as more voters question the statewide school funding formula. It's probably simply a matter of time before Montpelier and any number of other state capitols demand and get the authority to negotiate union contracts statewide on cost containment and insurance purchasing power grounds. At that point, our local school are no longer local schools in the current sense; they'll be state schools and local private schools may reflect local education values more accurately.
The bottom line is we're in a mess that is only partially due to our CLA, the current economy, and our own decisions. I was distressed to hear the accusations back and forth at Town Meeting implying bad faith on the part of volunteer committee and board members; suggesting that votes made on fiscal grounds expressed a lack of support for education; or that our budget issues could best be addressed by teachers taking voluntary pay cuts. The problems we face aren't that simple and the solutions certainly won't be that easy.
Monday, March 1, 2010
Point of Order
I have a question that I hope listserv readers might help me understand from this evening's information Town Meeting.
At the outset, we were admonished by the Moderator that there was to be no discussion of pending litigation. Any attempt to raise an issue of pending litigation would be ruled non-germane and cut off. I don't have any dogs in any litigation currently before the Selectboard so this didn't impact me personally, but it bothers me to be told the citizens of this town cannot raise concerns about pending litigation at an informational town meeting. When the traditional "other business" article was read, I rose to ask the Moderator what the legal basis for this gag order might be. He read a memo from the Secretary of State's office stating the issues of pending litigation not warned in an article is not germane, so must be raised at a Selectboard meeting where it can be placed on the Selectboard's agenda.
I think this is an incorrect statement of the law when applied to informational town meetings, but I'm interested to hear any defense of this rule.
"Germaneness" as a procedural concept for meetings run pursuant to Roberts Rules, applies to amendments to warned articles. The idea is to avoid having a warned article amended so drastically that it no longer expresses what the original article was meant to raise. A non-germane amendment risks depriving voters of having a reasonable opportunity to know what articles would be voted on at town meeting. An example would be a warned article asking whether to reduce the Town Manager's salary by 5% being amended at town meeting to ask whether the town should do away with a town manager form of government entirely. Voters have the right to know -- weeks in advance -- the scope of questions raised in the warned articles so they can decide how to they wish to vote and whether they even feel the need to show up.
We in Norwich did away with voting town meetings some time ago. Our town meeting is now strictly informational with no ability to vote, let alone amend, a warned article. The Secretary of State's opinion on pending litigation and the concept of germaneness don't make much sense in the context of a purely informational town meeting. While it may be foolish for a selectboard member to comment on pending litigation during an informational town meeting, it seems absurd to me to limit the townspeople's right to question the costs or benefits of pending litigation.
Academic and arcane, right?
Not really.
Later, during the school budget portion of the meeting, one resident spoke of the need for greater transparency in special education expenditures. There has been a struggle for several years now at the school board and SAU level over special education policy. To some, it appears the SAU has been particularly aggressive in litigating out-of-district placement issues (generally residential programs for young people who need services that exceed the capacities of our schools) -- referred to as "extraordinary special education expenditures" in the school budget. Litigation of these matters is particularly fraught as they invariably involve a young person in crisis, their family struggling to deal with the child's crisis, and the school district trying to balance budgets against the indeterminate potential for that child to harm his/her self or others. Real lives, real risks, real suffering in our schools, in our community, and sometimes a six-digit "extraordinary expense" figure in our school budget.
The SAU has employed a prominent special education attorney for several years now who has strenuously challenged many (most? all?) out-of-district placement requests made by parents of young people in our district. Is she doing a good job? Is she saving us money, curtailing illegitimate requests and making sure the districts' taxpayers' rights and interests are being protected? Or is she doing a poor job, milking the district for legal fees and simply prolonging the fiscal and emotional distress of the families involved when an out-of-district placement might have made more sense from the outset?
Now go ask the SAU or our school boards for our litigation expenses to contest out-of-district placements over the past year, five years, or past decade. Ask our school administrators and school board what our district policy is in determining whether to accept or challenge an out-of-district placement. You'll run into a wall of privacy concerns and find, as a result, that a significant portion of our school budget operates within a veritable black box. There aren't necessarily any villains here, just very difficult issues which no one seems at liberty to discuss in any significant way.
Yet, if I were a parent of a child needing services beyond what a traditional classroom allows, I would find the school budget discussions before voters at informational town meeting absolutely chilling. Special Education is an expense line. Extraordinary out-of-district placements are a fiscal setback. Can't I ask how much money our taxpayers are paying lawyers to litigate out-of-district special ed placements? Can't I ask how much money our school administrators and school boards feel they've saved us by defeating improper requests? What if I think our litigation posture is short-sighted and our attorneys may be milking the SAU or town for fees? Non-germane? How do we inform voters about our budgets without disclosing litigation expenses, policies that may predispose us to inordinate litigation, or allowing voters to express general opinions about whether they feel a matter in litigation makes sense for the town?
A year ago, those at informational town meeting heard individuals argue both sides of pending (still pending) property appraisal litigation. What's changed and when did speaking one's mind about town business and taxpayer expense become non-germane?
At the outset, we were admonished by the Moderator that there was to be no discussion of pending litigation. Any attempt to raise an issue of pending litigation would be ruled non-germane and cut off. I don't have any dogs in any litigation currently before the Selectboard so this didn't impact me personally, but it bothers me to be told the citizens of this town cannot raise concerns about pending litigation at an informational town meeting. When the traditional "other business" article was read, I rose to ask the Moderator what the legal basis for this gag order might be. He read a memo from the Secretary of State's office stating the issues of pending litigation not warned in an article is not germane, so must be raised at a Selectboard meeting where it can be placed on the Selectboard's agenda.
I think this is an incorrect statement of the law when applied to informational town meetings, but I'm interested to hear any defense of this rule.
"Germaneness" as a procedural concept for meetings run pursuant to Roberts Rules, applies to amendments to warned articles. The idea is to avoid having a warned article amended so drastically that it no longer expresses what the original article was meant to raise. A non-germane amendment risks depriving voters of having a reasonable opportunity to know what articles would be voted on at town meeting. An example would be a warned article asking whether to reduce the Town Manager's salary by 5% being amended at town meeting to ask whether the town should do away with a town manager form of government entirely. Voters have the right to know -- weeks in advance -- the scope of questions raised in the warned articles so they can decide how to they wish to vote and whether they even feel the need to show up.
We in Norwich did away with voting town meetings some time ago. Our town meeting is now strictly informational with no ability to vote, let alone amend, a warned article. The Secretary of State's opinion on pending litigation and the concept of germaneness don't make much sense in the context of a purely informational town meeting. While it may be foolish for a selectboard member to comment on pending litigation during an informational town meeting, it seems absurd to me to limit the townspeople's right to question the costs or benefits of pending litigation.
Academic and arcane, right?
Not really.
Later, during the school budget portion of the meeting, one resident spoke of the need for greater transparency in special education expenditures. There has been a struggle for several years now at the school board and SAU level over special education policy. To some, it appears the SAU has been particularly aggressive in litigating out-of-district placement issues (generally residential programs for young people who need services that exceed the capacities of our schools) -- referred to as "extraordinary special education expenditures" in the school budget. Litigation of these matters is particularly fraught as they invariably involve a young person in crisis, their family struggling to deal with the child's crisis, and the school district trying to balance budgets against the indeterminate potential for that child to harm his/her self or others. Real lives, real risks, real suffering in our schools, in our community, and sometimes a six-digit "extraordinary expense" figure in our school budget.
The SAU has employed a prominent special education attorney for several years now who has strenuously challenged many (most? all?) out-of-district placement requests made by parents of young people in our district. Is she doing a good job? Is she saving us money, curtailing illegitimate requests and making sure the districts' taxpayers' rights and interests are being protected? Or is she doing a poor job, milking the district for legal fees and simply prolonging the fiscal and emotional distress of the families involved when an out-of-district placement might have made more sense from the outset?
Now go ask the SAU or our school boards for our litigation expenses to contest out-of-district placements over the past year, five years, or past decade. Ask our school administrators and school board what our district policy is in determining whether to accept or challenge an out-of-district placement. You'll run into a wall of privacy concerns and find, as a result, that a significant portion of our school budget operates within a veritable black box. There aren't necessarily any villains here, just very difficult issues which no one seems at liberty to discuss in any significant way.
Yet, if I were a parent of a child needing services beyond what a traditional classroom allows, I would find the school budget discussions before voters at informational town meeting absolutely chilling. Special Education is an expense line. Extraordinary out-of-district placements are a fiscal setback. Can't I ask how much money our taxpayers are paying lawyers to litigate out-of-district special ed placements? Can't I ask how much money our school administrators and school boards feel they've saved us by defeating improper requests? What if I think our litigation posture is short-sighted and our attorneys may be milking the SAU or town for fees? Non-germane? How do we inform voters about our budgets without disclosing litigation expenses, policies that may predispose us to inordinate litigation, or allowing voters to express general opinions about whether they feel a matter in litigation makes sense for the town?
A year ago, those at informational town meeting heard individuals argue both sides of pending (still pending) property appraisal litigation. What's changed and when did speaking one's mind about town business and taxpayer expense become non-germane?
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