hard deadlines

Just thought it would be useful to have the letter discussed by the Town Council at Monday Night's meeting. Since this was discussed in open session, I obtained a copy from the Portsmouth Town Clerk pursuant to the state's Open Meetings law.

[BEGIN TEXT]

To: Attorney Kevin Gavin
Solicitor
Town of Portsmouth, Rhode Island
cc: Portsmouth Concerned Citizens
October 29, 2006

INTRODUCTION

As you know, I've been engaged by Portsmouth Concerned Citizens ("PCC") vis-a-vis contemplated extra-budgeted appropriations by the Portsmouth Town COuncil responsive to a threatened lawsuit by the Portsmouth School Committee under the so-called "Caruolo Act," R.I.G.L. 16-2-21.4.

Normally under circumstances under which litigation is threatened I would not offer to share with prospective opposing counsel what is, in effect, my theory of the case. However, such and offer was intentionally made at the October 27, 2006 Town Council meeting, for it is PCC's desire that, for the good of everyone in Portsmouth, litigation be avoided if at all possible. And so, in accordance with our brief telephone conversation of last evening, I am providing you with the summary of the legal bases underlying my professional opinion that: 1) the Portsmouth Town Council cannot legally appropriate additional monies to the school budget in excess of that approprated and approved at the so-called "Tent Meeting," and 2) that the Portsmouth School Committee cannot successfully maintain a so-called "Caruolo Act" lawsuit...and so the Town (acting through the Town Council) ultimately need not concern itself with the threat of such a suit.

Finally, I will briefly describe the measures that the PCC is preparing to take if it becomes necessary to enforce the provisions of the Portsmouth Home Rule Charter ("Town Charter") and applicable state law. This is intended not as a threat, but as a word to the wise.

Though PCC is in the process of collecting money to fund such measures, it is hoped that through your independent analysis of what is to follow you will conclude, as I have, that any attempt(s) by the Town Council to appropriate additional funds to the school budget (no matter how characterized or labeled, and whether external to or under cover of a "Caruolo Act" lawsuit) would be subject to recission in court, and thus would be futile, resulting only in the expenditure of unnecessary legal fees by the Town -- and thuse that you may advise the Town Council not to venture down that path, and they will decide to follow your advice.

That said, you will of course make your own independent professional judgement regarding the following, and render such opinion and advice to the Town Council as you deem appropriate. Whatever that advice turns out to be, by way of this document PCC wanted to extend a gesture of courtesy and good will, so that no matter what course the Town Council chooses, it will do so in a fully informed manner and foreknowledge of the potential ramifications of its decision(s).

TOWN CHARTER

As you know, the current Town Charter, Article II, Section 207, describes the enumerated powers of the town council. The initial paragraph of section 207 declares that the powers of the council are "to be exercised in accordance with relevant provisions of the Charter and of the Constitution and laws of this state." Subparagraph (h) authorizes the Council to raise taxes necessary "to implement the adopted budget." [Emphasis added.]

Article II, Section 208, Paragraph 6 provides that "[w]iwthin two weeks of the adoption of the final Town Budget, a Town Meeting of the duly qualified electors is of the Town may be called by petition...the purpose of said Town Meeting shall be limited to a reconsideration of the final budget of the Town as adopted by the Town Council and said Town Meeting may increase or decrease the total amount of either the School Department Budget or the Town Budget, or both." [Emphasis added.]

Any fair reading of the Town Charter conducted in conformance with accepted rules of statutory and/or contractual interpretation leads one to conclude that he overall budget appropriations approved at a so-called "Tent Meeting" are the final and mandatory appropriations. The Town Charter provides no provisions for supplemental appropriations, emergency appropriations or any other mechanism by which the Town Council can alter the total amount of the approved budgets. The only related power remaining to the Town Council is that described in Article II, Section 207, paragraph (i):"[t]o transfer appropriations within the Town budget (exclusive of the school Department budget) not to exceed the total appropriated" [Emphasis added.]

[...
EDITOR'S NOTE: FIVE PARAGRAPHS, QUOTING A FORMER TOWN SOLICITOR'S OPINION ON A PRIOR TOWN CHARTER OMITTED
...]]

To the extent that the Town Council has made any extr-budgeted supplemental or emergency appropriations under the current Town Charter, it is submitted that such were ultra vires -- performed without requisite authority and in violation of the Town Charter -- and so survived not because they were properly made, but only because they went unchallenged...a circumstance that should not be assumed in the future.

CARUOLO ACT

As you know, as a general rule the provisions or requirements of a Rhode Island statute trump contradictory provisions of a municipal charter. However, in this instance the unambiguous language of the so-called "Caruolo Act" subordinates itself to the requirements of the relevant municipal charters, and thus is an exception to the general rule.

In turn that subordination, coupled with the interplay between the "Caruolo Act" language and the provisions of the Portsmouth Town Charter, lead to an inescapable conclusion that the Portsmouth School Committe cannot adhere to the procedural prerequisites that the statute mandates for initiating a so-called "Caruolo suit" .. and thus cannot prosecute one.

Thus, from a leagl standpoint, the Portsmouth School Committee's assertions) that it would initiate a "Caruolo suit" are effectively bluster, and the Town Council need not concern itself with attempting to appropriate monies in an attempt to avoid a "Caruolo suit," much less the litigation expenses that would be attendant thereto.

The text of the "Caruolo Act" is reproduced below, but particular attention should be paid to the following sentence of paragraph (a): "[t]he decsions to increase any appropriations shall be conducted pursuant to the local charter or public law controlling the approval appropriations within the municipality." [Emphasis added.] As discussed above, under the Portsmouth Town Charter, once a fiscal year budget appropriation has been made there is no provision for the School Deparment, any other department, or even the Town Council to request an increase in the approved budget. Therefore, under the Town Charter the School Committee cannot request an increase, a prerequisite step required by the "Caruolo Act."

Further, Paragraph (b) of the "Caruolo Act" states that: <"[I]n the event of a negative vote by the appropriating authority, the school committee shall have the right to seek additional appropriations by bringing an action in Superior Court..." [Emphasis added.] Because the Portsmouth Town Council cannot conduct such a "vote" -- negative or otherwise -- and the "Caruolo Act" requires a "negative vote" as a prerequisite procedural step, under the unambiguous language of the "Caruolo Act" itself a "Caruolo suit" cannot be initiated...and should the School Committee so attempt, it would be subject to dismissal by motion.

POTENTIAL RECOURSE FOR PCC/INDIVIDUAL CITIZEN(S)

For the foregoing reasons, it is submitted that should the Portsmouth Town Council attempt to increase the School Department's budget as approved by the "Tent Meeting," it woudl be acting ultra vires. This is true whether by a supplemental appropriation, a transfer of "warrant" monies or any other euphemism that would have the effect of increasing the School Department budget.

This truth remains whether the attempt is made to "avoid" a "Caruolo suit" or as part of an "agreed" settlement to a "Caruolo suit" (Whether as part of a "pre-packaged" suit in which the Town and School Committee agree in advance regarding a figure to presented to a judget, or a "settlement figure" agreed to after suit is initiated).

In turn, should such ultra vires attempt(s) be made, PCC is firm that it will pursue all appropriate legal avenues to enforce the Town Charter and applicable law. This could include, e.g. a writ of mandamus seeking court-ordered enforcement of the Town Charter, along with such other avenues or "pleading in the alternative" as appear legally sound based upon the facts then before us.

Additionally, I would feel professionally obligated to research the legal viability of naming each member of the Town Council as defendents not just in their official capacities, but also as individuals (e.g., on a theory of "reckless" or "intentional disregard" for their legal authority or lack thereof under the Town Charter).

It is hoped that the Town Council undertakes a thorough review, including consultation with you, of its authority and obligations under the Town Charter, and thereafter conducts itself accordingly. It is not the desire of PCC that any litigation of any form -- or initiated by any party -- arises from the current and pending deliberations.

It is merely PCC's desire that the Town Charter be adhered to -- I believe that few would argue with that sentiment.

Sincerely,
[signed]
Thomas C. Wigand

[END TEXT]

Resources:
"Caruolo" Act (RIGL 16-2-21.4)
Portsmouth Town Charter
Wigand Associates PCC lawyer

HuffPo blogger Clemons provides a thoughtful analysis of Chafee's excellent work in the Senate, and argues persuasively for his re-election. What a bind. I really wish I could vote for him. I think he's a person of deep principle and integrity, and by god we need that in Washington. Twice in the past couple of years, I have called his office to thank him for votes, and that's more than I can say about any other Republican. (Or even, more to the point, about the Democractic congresscritter we have here. Let's remember which member of the RI delegation voted to authorize Bush's war in Iraq. Hint: it WASN'T Chafee.) But despite all the logical arguments that Clemons makes, I still don't think I could actually vote for Chafee next week, much as I want to. If only the race in the Senate weren't so close. But listen:

Chafee's confidence has grown enormously this year, and while it would have been easy for him to just stay where he had been on Bolton, he actually changed direction. Lincoln Chafee replaced Voinovich as a key no vote on Bolton -- but in contrast to Voinovich, Chafee would not vote in favor of sending Bolton's nomination to the floor of the Senate. This was an admirable stand, but more importantly, Chafee went further. Chafee then attached his opposition to Bolton to the miserable and worsening state of American foreign policy in the Middle East.

--Via the Huffington Post, Steve Clemons: Why I Support Lincoln Chafee's Re-Election

It's been a long wait since Mason & Dixon, and a few head-bagged appearances on The Simpsons just don't satisfy anyone jonesing for that word-fix only a big fat Pynchon novel provides.

I was introduced to Pynchon in 8th grade by the resident genius in our school, John Hopeck. I wasn't quite ready at that point, but when I read The Crying of Lot 49 a couple of years later, I was hooked. And I mean hooked.

My 5th-printing Bantam copy of Gravity's Rainbow is always within arms reach on a shelf; covered with scribbles, bookmarked, held together with library tape. When I took a Pynchon course in grad school, I had to buy a second copy just to read it pageturningly; the first mutated into a self-referential palimpsest, encrusted and imbricated, a slow evolving process of becoming its inner meaning, like some Pynchon sentence that begins with bright, innocent simplicity and ends up dragging a constellation of laggard concepts kicking and screaming across your corpus callosum. Heh heh.

Can't wait to see what the sensei has been up to...

Let me try to recount tonight's Town Council meeting objectively, first.

With the report of independent auditors B&E due at the school committee meeting tomorrow night, Superintendent Susan Lusi and Finance subcommittee chair Richard Carpender previewed next steps for the Town Council.

As I've blogged before, a group called PCC forced a financial town meeting on August 19 that slashed 1.2 million from the school budget, with the aim of lowering property taxes. The schools have struggled with cutting an already tight budget, and brought in outside auditors B&E to assess the situation.

As Carpender noted, members of the school committee are, in some resects, "agents of the state elected locally," and have no choice but to meet the letter of RI law in running the schools. "We are chartered to maintain and provide education," he said. "We have a disagreement in the amount of money, and we have available the mechanism of a Carulo Action, where we go before a third party -- the court -- to settle the dispute."

Lusi reiterated the point: "If we can't run a legal system with the 1.1 million in cuts, the law is prescriptive." And, she said, they've followed that process: request waivers, notify the Town Council within 10 days to ask for additional funds, and hire B&E to do the analysis to understand what would be required under "law, regulation, and contract."

And it need not be adversarial, she added. Other communities have been able work with the court, stipulate the numbers, and arrive at an agreement, which would save both sides from high legal fees.

To that end, Carpender suggested -- and the Council eagerly scheduled -- a workshop at the Town Hall at 4pm on Friday, Oct. 27, where they will meet directly with the B&E auditors, go through the report and recommendations, and hear public comment.

Personal thoughts: This strikes me as eminently sensible, far more rational a process than getting a bunch of people together under a tent and slashing blindly at a budget without any insight into the actual day-to-day financials. I'm looking forward to seeing the B&E report, and I think reasonable folks would welcome arbitration from a court.