Letter to Selectboard re: Point of Order

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.