Tiverton Citizens for Change

The long discussion of Town Solicitor Andy Teitz’s initial draft of a proposed policy for exceeding the state-imposed cap on towns’ tax rates (PDF) brought forth some, well, poorly considered statements from folks who give the impression that they want the law to be different (in order to make it easier to increase taxes).

By way of quick summary, the discussion has to do with state law 44-5-2. Subsections (a), (b), and (c) describe the calculations and review of the cap. Subsection (d) provides the circumstances under which a town may exceed the cap and gives general steps for clearing that action with the state. Subsection (e), giving instructions on how the town must approve the excess levy, is the source of most of the controversy:

Any levy pursuant to subsection (d) of this section in excess of the percentage increase specified in subsection (a) of this section shall be approved by the affirmative vote of at least four-fifths (4/5) of the full membership of the governing body of the city or town or in the case of a city or town having a financial town meeting, the majority of the electors present and voting at the town financial meeting shall also approve the excess levy.

You can read my liveblog from Monday’s Town Council meeting for a more detailed report (and I’ll have the video up as soon as possible), but a few of the points made there bear closer scrutiny. The first is Council Member Louise Durfee’s insistence that the people who wrote the law did not intend the phrase “shall also” to mean what it plainly means: that the governing body must approve the excess levy and the financial town meeting must do so separately. Durfee’s main evidence is a PowerPoint presentation that various state officials gave to representatives of the towns explaining the law that way.

That is simply irrelevant. The way a legislative body functions is by putting proposed laws through a process of debate and compromise among the various elected representatives, who then fashion a final law on which they can all agree. The unavoidable fact of this particular law is that the process at some point inserted the words “shall also,” and short of polling every representative involved in the debate and vote, we cannot know whether that was important to them or just appeared by a slip of the clerk’s typing fingers. If a handful of legislators and other folks in government could reset the law with PowerPoint presentations distorting its clear meaning, the legislative process would be a charade.

Council Member Joanne Arruda continued this line of thinking by insisting that “the simplest spirit of the law” was that the financial town meeting is meant to be the “governing body.” Again, by virtue of the words’ meanings, the “shall also” phrase suggests differently, because it presents the FTM as something distinct from the “governing body.” The only way Mrs. Arruda’s statement could be considered coherent is if the “spirit of the law” is determined essentially by her own personal preferences as a member of the council. But in order for our system of government to function, the law must be a neutral playing field from which we proceed based on the actual grammatical constructs therein.

As for what the “governing body” is, if it is not the FTM, I’d point to the only similar language in the Town Charter (PDF), which says in section 407 (1) that the Town Council will:

Serve as the policy making body of the Town.

Another important point raised at the meeting had to do with the different subsections of the law. Most of the council agreed that subsection (d) applied without question, so the FTM would require at least the waiver from the state. Former Council Member Brian Medeiros, however, argued that the council should not be able to tie the hands of the FTM in that way, and Solicitor Teitz essentially agreed. The problem with all such distinctions between (d) and (e) is that there’s no basis for applying one to the FTM and not the other. If the state can require the town to get a waiver before the FTM is authorized to exceed the cap, then it can certainly require the Town Council to take a 4/5 vote as a further step in that authorization.

If, as Medeiros and Teitz allege, the FTM can do whatever it wants, then no state laws ultimately apply. It is peculiar for Teitz, in particular, to take such a position, because at last year’s FTM he inappropriately advised that my proposed amendment reducing the school budget below the $1 increase that the state requires was against the law and therefore out of order. Looking at the tax cap law, if (e) does not apply, then (d) does not apply, and neither can anything else. The FTM could therefore reduce both school and municipal budgets to nothing — whatever state laws may say. I happen to think that the FTM is free to invite litigation, but we should at least be clear about what the law says and do so knowingly.

If the current council agrees with those who believe that it should not impose tax-cap limits on the FTM, then council members should procure the waiver and issue a statement that they are voting to approve the excess levy purely as a pro forma measure. In other words, they would explain that they do not believe it to be their role to constrain the FTM and are approving the excess levy as a procedural step regardless of their own opinions on the matter.

Of course, that approach leaves open the possibility that, if the Tiverton electorate does not agree with the council members, we would replace them all as their seats become available in order to achieve a different result next time around. Fear of that outcome is the only possible reason for Council Members’ reluctance to simply follow the law as it’s written.