One Special Act At A Time

On its face, Article 35 of the Annual Town Meeting is a simple request to increase an existing fee to put aside more money for the protection of our water supply.  Indeed, as the article is written, one would assume that Chapter 384 of the Acts of 2010 simply authorized the increase; and, one would be wrong.

For the wording of Article 35, and the legislative history concerning the formation and empowerment of the committee petitioning for adoption of the article, click on the "Article 35" page tab above.   The article is set out in its entirety and links are provided to the special legislation creating the committee, and the several amendments to the original act.  Pay particular attention to Section 5 of Chapter 384 of the Acts of 2010.

This particular committee is an interesting example of just what can happen when someone wants to do something without telling anyone about it.  It is really amazing.

What started out as a simple advisory committee has now morphed into essentially an independent agency that receives money, has been exempted from some significant provisions of law relative to its financing, borrowing and accountability; and, which is essentially answerable to no one, except to the extent that its members are appointed.

It is as far as I can figure out it is the only committee in Town empowered to borrow money on its own, with essentially no oversight over the money it gets from the present fees assessed.  Yes there are token procedures in place which seem to be set up more for show than as actual safeguards, but in the end the committee does not need approval to borrow, just some lender willing to lend.  To stop the borrowing, well read on for that.

Town Meeting does not approve any borrowing for the committee.  Every other entity in Town has to go through Town Meeting for borrowing to be authorized, not this committee.  In fact, the only way to keep the committee from borrowing would be to call a town meeting for the specific purpose to prevent it.  Even if Town Meeting votes against the borrowing, the committee can turn around and resubmit the same borrowing question.  By itself this is not necessarily what is wrong.

The procedure under which the Town would have to act however is of such a nature to make it nearly impossible to defeat any borrowing.

How does it work:  The committee votes to borrow.  Borrowing cannot occur until 45 days after the vote.  Within 7 days of the committee authorizing borrowing a letter must be provided to the Board of Selectmen.  If the Board of Selectmen decide they are opposed, and the issue should go to Town Meeting, the Board must call and hold a Town Meeting within the 45 day period before the borrowing can occur to vote against the borrowing.

Timed out right, a Town would have 38 days to schedule and hold a Town Meeting.  Seems like a lot of time, but when you figure what is involved in holding a Town Meeting, it isn't.

If the Selectmen agree with the decision to borrow, but we poor town folk might feel otherwise, we essentially have no recourse.

Assuming the people even become aware of the borrowing, someone would have to go out and get the 200 signatures necessary to call a special town meeting, file the petition, have the signatures certified and submitted to the selectmen, who would then have to meet to call the town meeting, all within the 45 day period the committee decide to borrow.  You actually see that happening?

Even if you managed to hold a special Town Meeting within the time frame, I would bet dimes for dollars that the second time the same borrowing was submitted it would get through because of the failure to meet the time deadlines.  In fact, if someone timed out everything right, you probably could get it through the first time.

Why is a committee, a committee specifically formed solely as an advisory committee, authorized to make a decision on borrowing which can only be overturned if: a).  the Selectmen disagree in the first instance; and, b). only if you can manage to call a town meeting and hold it within as little as 38 days.

Here are a few more rather particularly disturbing tidbits:

No one seems to be able to answer the question as to why section 5 of the latest enactment governing this advisory committee was added.  I have been told the selectmen were unaware of it.  I have been told the advisory committee members didn't ask for it.  I have been told the proposed law wasn't even submitted to our selectmen for review prior to enactment.

If no one asked for it, if they weren't aware of it, why does it exist.  More importantly, why should we simply accept it as a fait accompli.

Yes it is actually what does exist.  The special act presently authorizes the committee to borrow, and does in fact put into place what is clearly in my mind at a minimum a moral usurpation of not only the authority, but the oversight, by Town Meeting.  So why bother some may ask.

The reason we should bother certainly depends on whether you believe that the state should not on its own, or hand in hand with any special interests, erode the local authority and oversight of any town without the specific consent of its people.

Again, if no one knew about it and no one asked for it, one has to conclude someone in Boston decided that Town Meeting does not possess the ability to handle such decisions.  Lip services was placed in the procedure for the borrowing, providing essentially an unworkable method of oversight.

Quite frankly, I find it hard to believe that section 5 was just simply inserted into the special act, without some input from someone or some group.  Especially when I keep hearing all that was sought after was more money.

Doesn't seem the committee was having to much trouble spending what it had been getting, so why the added powers?  Why insert such provisions for what was suppose to only be an advisory committee?  

So what can be done if in fact the law all ready exists.

Well hand and hand with this apparently unsought after power that no one seemed to know about until it was passed, was the amendment to section 2 of one of the prior enactments.  The new special act seeks to increase the amounts charged for water usage.

I am told there is no present intent to borrow using the money all ready charged and which would be charged.  Such a statement begs the question, if there is no such intent, why is the provision in place to allow for such and why expand the power to borrow?

Why do away with Town Meeting approval?

Admittedly, under the 1997 act borrowing was authorized.  As written in 1997, however, it appears clear that the borrowing would require the actual approval of the various towns through each town's Town Meeting.  So while borrowing ability has existed for sometime, the appropriate safeguards were also in place. 

The 2010 amendment essentially does away with any choice by the towns in the matter.

You do not put something like section 5 of the 2010 amendment in place without a reason.

A point raised by some to pass the article is that even with the increase if passed, any borrowing would be limited, as the amounts that could be borrowed are not significant.  Significance is always dependent on perspective in the first instance, and what may not be significant today certainly could be tomorrow.

Also, you will hear about the need for more money because land prices have gone up.  This will always be the case.  Let us not kid ourselves, the amount being requested for the increase is not going to be the last increase sought.

So long as this special act remains as is, the only way to make sure that we as a town are not forced to jump through hoops to ensure appropriate borrowing takes place is to minimize the amount that can be spent.

Why should an advisory committee be empowered to such an extent?  Why should we roll over and allow such an abuse to be magnified?

Is the purpose behind the fee increase a good one.  I am not going to sit here and argue that it isn't. Protection of water resources is important.  So is the underlying concept of a number of projects which we have seen local oversight taken away from us.  

But as the saying goes ladies and gentlemen, the road to hell is paved with good intentions.  Good intentions have that particular road paved a fair distance on a number of issues at this point in time.  Good intentions have seen our ability as a town to decide town matters as a town eroded.

Explain to me the harm that would have occurred in requiring borrowing to be approved by Town Meeting, instead of setting up the convoluted and improbable mechanism to "disapprove" an action.  

There is only one reason to put something in place like that, and that is to take the real decision out of Town Meeting's hands.

Again, we have all seen recent examples of what happens when the local oversight and checks and balances are removed from our hands.

Does anyone out there have any memory of ever hearing at any meeting whether the Town of Fairhaven through its Town Meeting or its voters wished to grant these powers to what is suppose to be an advisory committee?

Why should this be an issue?  If we sit by and simply accept this, when and in what form will we next discover that we no longer have a say in what happens.

To butcher an old saying, I will close with the statement that this law is another example of why people are "losing faith in government, one special act at a time."