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?