It’s wonderful that national tea party activities have been putting pressure on elected officials at the federal level. It’s also important that, in Rhode Island, the Ocean State Policy Research Institute has formed as a think tank following issues of statewide concern, that the Rhode Island Statewide Coalition is taking an increasingly active role in highlighting bad legislation and reviewing candidates for office, and that the Rhode Island Tea Party has directed its activities toward statewide issues as well as national. I’ve maintained, however, that individual activism should begin at the city and town level, where government office is most accessible and where basic political principles have an immediate and local effect on voters’ lives.

We’re certainly finding, in my hometown of Tiverton, RI, that members of the political establishment who operate locally are willing to act as the vanguard in intimidating active residents (of the undesirable sort) to get out of politics.

The same week Tiverton Citizens for Change President David Nelson officially put his name down as a potential candidate for Town Council, two current members of that body, Louise Durfee and Joanne Arruda, filed a defamation lawsuit against him (and an unnamed group of John and Jane Does that may turn out to include me). Their lawyer, Jeffrey Schreck, sent the initial threat of litigation to Mr. Nelson shortly before this year’s contentious financial town meeting, and I’ll have more to say about the suspicious timing of these events, as well as the lack of merits to their claim, in the future, but on first review, I have to express my disappointment at the level of thinking that the resources of our public judiciary must be expended to address.

The substance of the complaint made by Arruda and Durfee — the latter a former director of the state Department of Environmental Management and one-time candidate for governor — hardly has grammatical grounds, let alone legal ones — from a PDF of the summons:

6. The Letter accuses plaintiffs and their allies of submitting false documentation to the State of Rhode Island to support a tax increase. The Letter further states that this accusation of official misconduct by plaintiffs is “not an idle charge” and is “well-documented.” The Letter accuses plaintiffs and others who constitute a majority of the members of the Town Council of making “a practice of sending secret, falsified documents to the state government.”

7. Mr. Nelson’s statements in the Letter accuse plaintiffs of wrongful, criminal conduct, and assert that TCC has written evidence to support his charges.

Here’s the relevant section of the offending letter from Mr. Nelson:

Still worse are the efforts of Ms Durfee, Joanne Arruda and their allies, in deliberate cooperation with the Town Administrator to avoid a Town Council vote exceeding the State Tax cap. They have submitted false documentation to the State to facilitate a tax increase of at least 9%. This is not an idle charge, and it is well documented. Town Administrator Goncalo has stressed that the documents are secret except for him, the Town Treasurer, Budget Committee, and the State. In fact, he promised “to find out who put that form on the Internet”, as if posting public documents is now a matter for witch hunts and suppression of transparency. We have this on tape.

It is astounding that a town official would make a practice of sending secret, falsified documents to the state government based on information that distorts the current status of the town’s budget process. More astonishing is that a majority of the Town Council supports it.

Either Durfee and Arruda have skin so thin that it pains them even to be in proximity of accusations, or they’re twisting the facts in order to present themselves as victims. Their names appear in the letter specifically with reference to efforts to “avoid a Town Council vote exceeding the State Tax cap,” which is irrefutably accurate, given the months of public debate in which they took precisely that position. The “they” who submitted false documents to the state is the whole group of “allies,” including Mr. Goncalo, and it is simply a fact that he did so. Whether Durfee and Arruda’s cooperation with the larger effort extended to direct prior knowledge of Goncalo’s act is immaterial, although it’s reasonable to have suspicions.

Furthermore, as evident in video of the Town Council meeting at which TCC brought this matter to a public head, the town administrator clearly did stress that his act was meant to be secret. And Nelson’s letter explicitly faults “a town official” — that is, Town Administrator James Goncalo — for this particular action within the larger campaign to avoid the letter of the tax cap law.

Lastly, as is also evident in the video, the lack of outrage from the majority of the Town Council implicitly lends their support. If, as their lawsuit implies, Durfee and Arruda believe that Mr. Goncalo’s actions were “criminal conduct” — an accusation that Nelson’s letter does not make — then they are guilty of shirking their responsibility by not censuring their employee when the matter came to their attention.

That local elected officials — who deserve partial blame for the town’s thinning tax base and demand for massive tax increases in the midst of an historic recession — would twist language for political purposes is to be expected. That they would seek to leverage the overburdened court system in an effort to cost a candidate for local office time and money during campaign season is one more example of the methodology by which political insiders have fostered public disengagement from the political process.

One unexpected benefit of this moving around was that I managed to catch Director of Administration and Finance Doug Fiore in the hallway to clarify something: The teacher union’s maneuver to avoid the 18% healthcare copay (over the current 12%) cost the district $120,000 this year.

8:15 p.m.

OK. They’re back, talking budget, related to a legal opinion from RIDE, today, answering some question that attorney Robinson had sent regarding how the district should calculate its maximum request and such.

According to the assistant education commissioner, federal stimulus money cannot be used to calculate the local spending increase. (As I said had to be the case if English means anything when it’s used in the law.) Consequently, the committee’s requested local contribution of $21,285,285 must be reduced to $20,979,030.

Moreover, the commissioner told the district to factor in a 3.8% reduction in state and federal aid, which means the committee’s total general revenue request will be $25,620,772, which is slightly down from the request of $25,645,096, but still higher than the Budget Committee’s recommended $25,333,181.

9:00 p.m.

Attorney Robinson presented his opinion about the RIDE document, and I took the podium to offer a bit of rebuttal. The upshot of the discussion is that it is inaccurate to say that any number appropriated by the FTM is “illegal” provided it gives at least as much as the previous year appropriation of local funds. It might be accurate to say that it would be “illegal” for the FTM to vote for a number that does not mention the expected state and federal aid. In that case, according to RIDE, the town would be responsible for any aid shortfalls.

From home:

I should note that the committee voted (with only Danielle Coulter opposed) to change its request at the FTM to the numbers, cited above, suggested by the RIDE opinion. (The committee and administrators persisted in calling it “a ruling,” but in my opinion, that’s a little misleading.)

I should also note that it came up that it would be perfectly legal for the FTM to vote to expect zero state or federal aid and appropriate accordingly. As a practical matter, that’s clearly not a reasonable expectation, and the town should stick to the Budget Committee’s recommendation, but it is good to know.

(To expand: I’m not sure what the repercussions would be for the School Committee’s budgeting were that to happen. I suspect they could delay major cuts until the money came in, but I’m not sure that nothing would get blown out in the confusion.)

Toward the end of the exchange, DiMattia makes the practical point that Durfee could easily ask questions and make suggestions in person or over the phone, without waiting two weeks for the opportunity to engage in political theater. That’s especially true, considering that the council does not appoint the treasurer; the townspeople elect him.

I’ve heard rumors that there might be something interesting being said, here, tonight.

7:24 p.m.

Town Treasurer Phil DiMattia is at the witness table answering some questions from Council Member Louise Durfee. I don’t recall hearing that much from the previous town treasurer at town council meetings, but that in itself is telling. It’s interesting to watch her with Mr. DiMattia; the delight at ribbing him couldn’t be more visible on her face.

7:30 p.m.

Town Council Member Jay Lambert suggested that the council should resist the urge to micromanage and second guess the treasurer. Watching the exchanges, one might forget that the treasurer is elected directly by the residents of Tiverton, not appointed by the council.

7:33 p.m.

Mr. DiMattia suggested that Ms. Durfee should feel free to call him rather than wait for a town council meeting.

7:35 p.m.

The agenda has moved on to a “standby motion” for exceeding the tax cap at the financial town meeting. Thus far, Council President Don Bollin and Jay Lambert are questioning whether a “standby motion” is necessary. Lambert: “This standby motion is a fiction.”

7:39 p.m.

Interesting that even Louise Durfee is among the unanimous voices questioning the need for a standby motion. I’m pretty sure this was her idea.

Furthermore, the substitute for Solicitor Andrew Teitz is stating that the FTM requires a prior justification for exceeding the cap (i.e., the waiver), which is in direct conflict with Mr. Teitz’s prior suggestion.

7:43 p.m.

Budget Committee Vice Chair Rob Coulter noted that Teitz’s firm also represents Barrington and might have given different advice. The substitute isn’t familiar with the facts.

7:47 p.m.

Lambert noted that the town is now looking at more than 9% of a tax increasing according to documents that went to the state.

7:50 p.m.

Bollin restated his disagreement with the notion of having a standby motion. By the way, Council Member Cecil Leonard has a motion on the floor to disapprove the standby.

7:57 p.m.

Leonard, Lambert, and Roderick voted to disapprove the standby. Bollin and Durfee voted not to disapprove. Costa abstained. Motion to disapprove carried.

8:09 p.m.

A representative of the local Economic Development Commission gave a quick summary of what they’ll be talking about at their event tomorrow night (at the new Family Ties restaurant) featuring state Economic Development head Keith Stokes. I’d like to know why they would schedule an event on the same night as a School Committee meeting. Guess I’ll have to CC Mr. Stokes in my note to D’Souza.

8:22 p.m.

Laura Epke is now seeking guidance on how much economic feasibility should be a factor in her committee’s recommendations about what to do with various town properties.

8:36 p.m.

Town Administrator Jim Goncalo is requesting renewal of some town officers contracts with “no cost impact” until June 2011, which (Jim O’Dell asked to be clarified) means no increase in salaries or benefits, unless the town chooses to give them.

8:49 p.m.

The request was unanimously continued to the next meeting in order to make sure they get the legal stuff right.

8:58 p.m.

TCC President Dave Nelson is mentioning the proposed tax increase form that Town Administrator Goncalo changed a form to send to the state to “ask for information.” Bollin, Durfee, and Goncalo have all behaved as if it’s no big deal that the town administrator is sending official documents that are false and not noted as false or “for illustration purposes,” because it was in the context of a cover letter that explains its purpose.

I pointed out that the cover letter called the false document “the ‘Notice of Proposed Tax Rate Change.’” The Town Council had never seen that document. How can there be no outrage on the council over that?

Rob Coulter has been expanding the argument and Goncalo has promised “to find out who put that form on the Internet.” So now what? A witch hunt for the person who disclosed a secret document going to the state?

9:28 p.m.

Lambert made the excellent point that it is absolutely clear that the town council is asking for a waiver without asking for a waiver in order to avoid a 4/5 vote before the FTM.

Hannibal Costa then declared that the item wasn’t on the agenda (it was) and Bollin forthwith ended the meeting… no vote, no further opportunity to talk.

An interesting exchange of statements: Tax Assessor David Robert was trying to explain where the budget calculates motor vehicle taxes, and council member Louise Durfee noted that increasing car taxes — which occurs outside of the mandated cap on tax increases — “helps the town.” Interesting that, in her view, there’s such a distinction between “the town” and the people who may be seeing an average of $350 or more increase in annual taxes.

7:29 p.m.

Council Member Jay Lambert noted a reservation about saying to a fifth of the town who are unemployed and another fifth who are struggling, and so on, that they’re just gong to have to accept a 9% increase.

Durfee subsequently stated that “the powers that be” have determined that some of the difficulty is going to be borne by the taxpayers. Funny, I thought the town council and school committee are the “powers that be” in Tiverton.

7:35 p.m.

Budget Committee Chairman Jeff Caron has mentioned that his committee has slated for the school district and town to each see a 1.7% increase — the extra having emerged with the proposed state funding formula for schools. (It’s not going to pass, I’d wager, but we can pretend otherwise, if we like.)

7:39 p.m.

Lambert just stated that he would only “reluctantly” support an increase at the cap, and no more. “We just have to learn to live within that economic reality.” Before the meeting, he looked back at previous budgets and noticed an approximate 180% increase of the tax levy over the last ten years. He noted, too, that the state government looks to be no better off next year.

His instruction: cut the budget, and if people don’t like what’s lost, they should motivate themselves and neighbors to change the state government so that the politicians will “get off their fat asses” and do something.

7:45 p.m.

Durfee is arguing that, since the municipal side is under a 4.5% spending increase. And the school committee is shooting to come in at a 4.5% spending increase. Yet, somehow, the tax levy goes up 9+%.

8:19 p.m.

Lambert has fallen for the reasoning that it’s responsible for the council to count the spending as “under the cap.”

Unanimous vote to move forward the budget that clearly breaks the cap.

I tried to speak just to point out two things for perspective, but the council voted (unanimously) to move the question. So much for citizen participation.

The two (very quick) points I wanted to make were:

1) A statement by Laura Epke that a $100,000 increase in the budget “only” represents a nickle increase in the tax rate. Of course, the tax rate is calculated per thousand, and the increase will be much more than that nickel’s worth. The average increase in property taxes will still be $350 or more.
2) The council is satisfied that its proposed budget only increased three-point-something percent. Inflation currently stands at 2.63% year-over-year.

8:26 p.m.

Jeff Caron has snuck up to the microphone to raise the question of requesting a tax-cap waiver. My prediction: big hoopla coming up when if we can’t keep the financial town meeting’s budget below the tax cap.

And I’d like to reiterate that every single town council voted to propose a budget that will almost certainly exceed the levy cap.

Town Councilwoman Louise Durfee said she “cannot live with” some of the cuts made by the Budget Committee majority.

“This is crazy stuff,” she said, citing eliminating the town’s dues to the Newport County Chamber of Commerce and Rhode Island League of Cities and Towns, cutting funding for the town’s Economic Development Commission and postage for delinquent tax collection notices and reducing the town planner to part-time.

“I’m not prepared to live with the Budget Committee recommendations,” she said…

TCC President Dave Nelson was in the room, as was Budget Committee member Tom Parker. I’m sure either of them would have been happy to explain a little of the craziness, and perhaps respond to Durfee’s accusation of a lack of compassion by noting struggling residents. Indeed, Council member Jay Lambert spoke about the older folks in town on fixed incomes, and I took the podium to add young working families, like mine, to the list of taxpayers who could use a little compassion, too.

And then Pobzeznik quoted this:

“Some of these justifications to me seem to be personal rather than practical,” Council Vice President Joanne M. Arruda said.

What was Arruda insinuating? What might the people she’s accusing of whatever she’s accusing them of have to say about it? Readers don’t know, because the local journalist didn’t bother to find out, so a government incumbent gets to smear residents vaguely in the pages of the Newport Daily News, and from the paper’s perspective, that’s not only fine, but news worthy of itself.

• The school department believes that they were shorted in the current year. Depending on what funds must be counted in the budget for purposes of the mandated local “maintenance of effort,” it could be anywhere from a quarter million dollars to four million dollars.
• They feel positive about some sort of concession from the teachers’ union, but they don’t want to take any budgetary actions before they know.

Here’s the language in state law requiring a certain increase for school departments.

7:18 p.m.

School Committee Chairman Jan Bergandy stated that “It was always our plan to go below the cap.” Frankly, as somebody who has sat through just about every school committee meeting during this budget season, that really hasn’t been an impression that I’ve gotten.

Superintendent Bill Rearick seems optimistic that they’ll be able to wrap up mediation with the teachers’ union in time for the FTM. From what I hear, any concessions won’t be anywhere near enough to make up budget shortfalls. In other words, the impression is that they’re seeking to lock in a number before the FTM.

7:37 p.m.

Council Member Ed Roderick noted that what the School Committee is calling “the cap” really isn’t the cap, because it doesn’t take into account the town’s budget. Rearick responded that he thought debt service should be included in calculating the cap, and since the town has so much debt, thanks to school bonds, we can just go ahead and raise taxes more.

Town Council member Louise Durfee quipped, at some point that, “It would solve all our problems if we get that car tax.” More increased taxes.

Apparently, if I’m understanding correctly, the schools’ complaint is that they’re counting their “appropriation” as total money, so the town is required to make up lost state and federal money that was estimated in the “appropriation.”

I took the mic to mention that (1) the state’s language speaks to the “local funds” that must go up, (2) the financial town meeting calculated the necessary increase on a per pupil basis, and (3) the FTM explicitly stated that any extra money should return to the town. Council President Don Bollin said that the language about returning money has never been enforceable.

The, oddly, Rearick said that he concurs, leaving me at a loss as to what their complaint actually is. I’ll have to check the tape, I guess.

8:09 p.m.

Council Member Jay Lambert noted that many older residents can’t afford increases in taxes. I took the podium to note that many younger families, like mine, are seeing higher costs and lower income, as well.

I also challenged a previous statement by School Committee member Leonard Wright in which he claimed that each teacher would have to take a $10,000 cut in salary/benefits to save $1.8 million. Wright reached that argument by stating that the town needed $1.4 million, so $1.8 million would leave a little extra (for legal challenges). I made the point that he was calculating the $1.4 million off of next year’s budget, which includes something like $700,000 in increased salary/benefit costs.

He doggedly held to his number as an example, so the year of the budget didn’t matter, but it manifestly does matter, because the town wouldn’t need $10,000 from each teacher’s current salary. You’d need about half that, which is much less than many private sector incomes have fallen.

8:25 p.m.

The School Committee has departed, and Ms. Durfee noted that she “can’t live with the Budget Committee’s cuts” and suggested a likelihood that they’ll need to go for a waiver of the tax cap. In the interim, she’s suggesting that Town Administrator Jim Goncalo come up with a lower municipal budget to get a little closer to the Budget Committee and then return to the Budget Committee with the new numbers.

8:34 p.m.

The Town Council is discussing some language from Solicitor Andy Teitz by which the General Assembly would allow cities and towns to postpone budget decisions for 90 days, so that they can be made with better information.

8:40 p.m.

Teitz suggested that Town Clerk Nancy Mello send the draft legislation to every other city and town.

Leonard Wright is noting that a budget decision in August or September would present really big problems considering that the school department must notify teachers that they may not be asked back by March.

Of course, I’d add, with contracts typically ending at the end of the fiscal year (end of June, I believe), moving the FTM would allow town bodies to operate with a (theoretically) hard-stop deadline for negotiations well before they know what the taxpayers are willing to provide.

8:50 p.m.

The council is moving forward with the proposed legislation. Between discussions, Durfee brought up the possibility of increasing car taxes again.

8:59 p.m.

Council member Cecil Leonard moved to take discussion of exceeding the tax cap off the table. Only Jay Lambert voted with him.

7:20 p.m.

During discussion of community block grants, the topic of subsidized youth employment came up, along with mention of a statistic that the number of working teens is down to historical lows. I agree with the benefits of work, for young Americans, and if there’s money to be had, it should be used.

That said, I’d make two suggestions: First, that having businesses in town would be a good first step to ensuring that kids who want to work can do so, and without public subsidy. Every time a mall or a grocery store or other such project is kept out of the town it affects such intentions.

My second point is less immediately within our control. Kids today are much more sedentary, with tremendous distractions and entertaining lures that keep them in the house.

7:42 p.m.

Interesting to note that the fellow who used the podium at a recent School Committee meeting to decry the town’s retirement villages as “a cancer on our community” has been taking the Town Council microphone repeatedly. With a tone bespeaking insinuation he’s been making references to “the community, by which I don’t mean gated communities.” Council Member Louise Durfee chuckled at that.

One suspects the speaker thinks he’s jabbing at TCC (“what these [unnamed] people are doing to our town”). I suspect he’s just conveying to the average viewer — who hasn’t already chosen a side — will think he’s a slightly nutty local character.

7:50 p.m.

During a public hearing on various inspection requirements and fees, it came to light that the state of Rhode Island is requiring towns to inspect temporary tents — not only the fire marshal, but for the structure of the tent itself. That’s another $60 to put a tent on your property in Tiverton.

It’s worth noting that the state is mandating the inspection, but it’s the town coming up with the $60 fee. Such is Rhode Island.

8:34 p.m.

The budget discussion is up. Administrator Jim Goncalo presented a revised budget, but Council Member Durfee raised the Budget Committee’s vote to cut the budget. The question is what happens next. Durfee: do we just go to the FTM and argue for our proposal.

Council Member Jay Lambert is suggesting that the Council hold off on discussion until after the Budget Committee’s vote on Thursday.

Apparently, it’s a possibility that the Budget Committee and Town Council will present different budgets to the FTM.

8:39 p.m.

Durfee just mentioned the possibility that the General Assembly will allow the town to raise another million plus via the vehicle tax. Notably, she didn’t even raise the question of whether that would be worth doing to the townsfolk.

Council President Don Bollin is suggesting that it might be worth seeking a postponement by the General Assembly of the FTM until late summer so that we all have the relevant numbers to debate. I’d agree with that, although it does make open contract negotiations problematic.

9:19 p.m.

We’re still here. Long meeting. Town Administrator Jim Goncalo just presented a memo of items that might be cut should his proposed budget not be approved.

Curious: Among the possibilities is closing the office in the fire department that offers building planning services. It came to light, though, that those services might in some degree be covered by the fees that the town charges for them. Of what possible use (other than propaganda) could this list be if it includes services that might pay for themselves?

9:27 p.m.

The “cancer” guy is at it again, taking to the microphone to express dislike for every town interaction with the retirement communities. He’s reminding me of the heckler in this scene; he even looks a lot like him:

10:03 p.m.

Town Solicitor Andy Teitz is introducing various language items that he’s put together for the council. Right now, they’re talking about a “standby motion” that would put the language to exceed the tax cap in the FTM docket. On the one hand, it makes sense to have the language in there for consideration. On the other hand, providing it beforehand gives the impression that it’s intended for use.

10:07 p.m.

Budget Committee Chairman Jeff Caron made the point that his committee seems likely to come in under the cap and that printing this language with town resources “greases the skids” to exceed the cap.

10:10 p.m.

Louise Durfee is railing against the cuts of the Budget Committee, suggesting that the townspeople are going to incite people to turn out and raise taxes above the cap.

10:29 p.m.

Putting the language for exceeding the cap in the docket has been tabled until the next regularly scheduled council meeting, in the hopes that other matters will resolve the necessity of it.

10:35 p.m.

Council President Don Bollin is going on and on about the problems of state laws and policies. We all get it. Can we move on. It’s nearly 11:00.

10:36 p.m.

And finally to the proposed policy for exceeding the cap. Teitz says he’s giving up trying to hone the policy into legal language and leaving it up to the council.

10:39 p.m.

Lambert has put together a different resolution.

I picked the wrong day to cut back on my coffee intake.

10:44 p.m.

We’re back to the debate about whether the law really means “also” when it says the council must vote and the town meeting must “also” do so. It’s really unbelievable. What good is the law if it doesn’t mean what it says.

10:52 p.m.

We’re right back to the council arguing that the FTM can do whatever it wants. Clearly false. This body is just bringing this up every two weeks until it manages to get the vote that certain members (and the solicitor) desire.

Just my opinion, of course, but it’s definitely a firm one.

11:15 p.m.

Durfee made a motion to table the policy. It passes, with Lambert and Bollin objecting. The temper appears to be that the whole thing should just go to court (with the Coulters’ lawsuit) and be resolved there.

… comparing a Federal Emergency Management Agency training requirement to Hitler’s reign in Germany? Not only is that patently offensive, it’s not even an apt analogy. …

Costa’s comments were reminiscent of protests during the early days of Barack Obama’s presidency, when signs surfaced showing Obama with a Hitleresque mustache, calling his platform “national socialism,” and right-wing pundits called him the “Black Hitler.”

Those comments were incredibly insensitive and incendiary, much like Costa’s take on FEMA Monday night: “That sounds like a dictatorship,” he said. “What the hell country do we live in these days?”

Certainly not Nazi Germany. Costa and his ilk would do well to remember that.

Look, Costa’s remarks were certainly hyperbolic, especially given the limited nature of this particular federal requirement, but the Daily News distorts his position in a couple of ways. First, Mr. Costa has been making this sort of complaint since well before the election of Barack Obama, and there’s no reason to assume that he had the president — as compared with the entire national bureaucracy — in mind.

Second, the comparison was not to “Hitler’s reign,” but to his ascension. Yes, the Nazis were more overtly conspiratorial in manipulating the votes of political representatives (that’s the hyperbole), but strictly speaking, they “took over Germany,” as Costa put it, by enacting enabling legislation and policies. Indeed, the key law is called “the Enabling Act”:

For Adolf Hitler, the goal of a legally established dictatorship was now within reach. On March 15, 1933, a cabinet meeting was held during which Hitler and Goring discussed how to obstruct what was left of the democratic process to get an Enabling Act passed by the Reichstag. This law would hand over the constitutional functions of the Reichstag to Hitler, including the power to make laws, control the budget and approve treaties with foreign governments.

The emergency decree signed by Hindenburg on February 28, after the Reichstag fire, made it easy for them to interfere with non-Nazi elected representatives of the people by simply arresting them.

Prior to the Enabling Act, the German government had faced perpetual political gridlock, leading the chancellor to enact policies through emergency decrees. That practice began well before the Nazis’ rise, but it’s still properly understood as part of the process by which Germany became vulnerable to transition to dictatorship.

The point is that, working within a democracy, regimes do not begin behaving as totalitarians (for one thing, eliminating people) until they’ve built a machine that implicates those who ought to restrain them, as well. They make more and more parties dependent upon or frightened of them, in various ways, until the time is opportune to pull the trigger on the trap. Elected town officials — and their ilk — shouldn’t wait until the machine is nearly complete before they begin noting the danger, and while rhetorical excess ought to be curbed, the impulse to make the inferences taboo increases vulnerability.

The Newport Daily News dug deep into the minor proceedings of a town meeting for an opportunity to express its tender sensibilities. We can only hope that the editors’ desire to pose reasonable does not still their tongue when tyranny dips more than a finger into the political waters.

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.