R.I.P. Barnstable Town Charter

The Barnstable Patriot is reporting that the judge in the Councilor Greg Milne for Charter Commissioner case has overruled common sense and has ruled that Milne may serve on the Charter Commission. This effectively kills Barnstable's charter, because it specifically says that "no person shall simultaneously hold more than one elective town office". Now, if someone disagrees with the charter, all they have to do is go ask Judge Kane.

I have dedicated multiple posts to explaining the common sense and legal language showing that Councilor Milne is not entitled to serve as both a Town Councilor AND a Charter Commissioner. You can find them here.


To recap the events to date:

Before last fall's election, Councilors James Crocker, Greg Milne, and James F. Munafo, Jr. were seriously interested in running for Charter Commission. Before running, Munafo asked then-Town Attorney Bob Smith if the Charter would allow it. His response was an emphatic "NO".

Upon hearing Smith's emphatic opinion, Councilors Munafo and Crocker both chose not to pursue a seat. However, Councilor Milne decided to ignore Smith's (correct) decision on the charter language and run anyway.

During the 2007 election, Councilor Milne appeared on the ballot twice - Charter Commissioner and his Town Council seat (for which he was unopposed). He was told numerous times by the Town Clerk and others that he would only be sworn into one office. I know countless individuals who took this knowledge (that Milne would only be allowed one office) and voted for Milne as Charter Commissioner, hoping that he would abandon the Council for the Charter Commission.

When push came to shove, Milne (obviously) won his Council seat again and also qualified for a seat on the Charter Commission. The Town Clerk again informed Councilor Milne he would be sworn into only one office, and he chose his Council seat.

Instead of acknowledging the fact that the charter clearly prohibits anyone from holding two elected town offices, Councilor Milne (and his COG buddies) sued the town to be instated onto the Charter Commission, throwing the Commission into limbo. It is now about 9 months since this lawsuit began.


Back to the present:

Judge Kane ignored common sense, the charter's own language, and the sworn testimony of the current Charter's authoring Charter Commission Chairman (Michael Daley) all stating that it's only one town office per person.

'The town-entered affidavit of Michael Daley, chairman of the 1989 commission that drafted the charter, provides his recollection that '[W]e did not want people who were already elected to other positions in our local government serving on the Charter Commission' - Barnstable Patriot.

However, Milne has NOT been sworn in to the Charter Commission, yet. Smart money has the town appealing Judge Kane's decision, AND that court setting things right.

Yet, the largest loss in this case may not be Judge Kane's ruling, but rather the potential loss of other Charter Commissioners. Rumors are swirling that Charter Commissioners Sheila Geiler, Bob Jones and Lucien Poyant will resign if Milne is seated on the Commission. This is extremely bad news, because these 3 highly qualified candidates would be replaced by Daley and two COGers.

I wouldn't want to work with Milne either (and neither does ANYONE on the current Council), but we can't let him win twice with one decision.

So, if you know Geiler, Jones or Poyant, please encourage them to stick it out, no matter what...

Yet Another Post About the (Now Failed) Joakim Recall Attempt

Writing entries about COG's futile attempt to recall Town Council President Janet Joakim is starting to get tiresome and repetitive. Yet, necessity is the mother of invention, and so I create another post.

Yesterday, in an already anticipated move, Town Attorney Ruth Weil declared COG's recall affidavit invalid because it did not clearly inform possible signers that that they were "signing under the penalties of perjury", which is required for a legal affidavit. Citing multiple case laws, including a 1975 Massachusetts Supreme Judicial Court and a 1994 Superior Court ruling. Both clearly articulate the fact that this language is a REQUIREMENT of affidavits and how a Town Clerk handles them (whether or not she lets the process continue) does not supersede any state law or court rulings.

As the Barnstable Patriot pointed out, the recall attempt in Barnstable not involving Joakim ended up dying for the same reason. The 2003 attempt to recall Councilor Carl Riedell failed for very similar language issues.

It looks like this one is crystal clear. No amount of COG whining, moaning, groaning, yelling or screaming is going to change matters. Nor will any amount of phone calls or emails to the State Attorney General, Secretary of the Commonwealth of Massachusetts or Radio Hall of Fame Talk Show Host Howie Carr will result in any change. There is clear legal precedent in this matter, and the lawyer they hired to review this petition (and approved it) should be fired. This one is all on COG.

Though on this one, they might just go out and start over again. After they whine a bit first.

Of course, Weil's ruling and the anticipation of the expected ruling brought out more of the worst of COG. Over on the COG Living blog, they're talking about getting guns and "bankrolling" the next attempt to the tune of $2,000. The worst is coming from the main COG blog. There has been ethnic slurs (A "Femme Nazi" quote from Lopez even made it into the Barnstable Patriot's article), countless shameless attacks of all types on both the Town Attorney and Town Clerk, as well as the "piece de resistance" - a very large photo of someone giving the middle finger. Real family reading!


Now that people will be told that they are signing any recall paperwork under "the penalties of perjury", I wonder how many will actually sign it. This is not a simple sign-and-make-the-annoying-person-go-away petition anymore.


To those who complain that this ruling somehow "overturned the will of the voters": 255 signatures from a tiny precinct in Barnstable do not overrule the Massachusetts Supreme Judicial Court. Ruth Weil and the Town Clerk were simply doing their jobs in ensuring that all legal issues were covered. They could tell everyone that the petition was illegal now or a nice judge could. I'm glad they saved us the trouble.


Anyway, our friends down at the Barnstable Patriot did an excellent job of summarizing the Weil decision, so here's the link to the complete story and here's a shortened version below:

Joakim recall ends on invalid affidavit (updated)
Written by David Still II
August 05, 2008

The affidavit submitted to initiate the recall of Barnstable town council president was flawed, according to the town attorney’s office, and the recall election cannot proceed.

That is the essence of the Aug. 5 opinion from town attorney Ruth Weil in response to a request from Town Clerk Linda Hutchenrider. Hutchenrider did find that the petition submitted to recall Precinct 6 councilor Janet Joakim contained more than the necessary 255 “good signatures,” but asked for an opinion from the town attorney’s office regarding the entirety of the submission.

The defect in the affidavit is that it was not signed under the penalties of perjury, which Weil argues is a condition for a valid affidavit. In support of her opinion, Weil cited several Massachusetts cases, including a 1994 Massachusetts Superior Court case in which despite a town clerk’s issuance of recall petitions based on an improper affidavit, the recall was defective....

Weil's opinion is similar to one offered by her predecessor in 2003 during the attempted recall of then-Precinct 5 councilor Carl Riedell. The affidavits submitted to begin that process were deemed defective for the same reason after the collection of what appeared to be sufficient signatures....

Writing on his blog..., recall organizer Gary Lopez indicated that a new recall effort would commence.

“We will eschew a court challenge and begin the recall process anew on August 12th,” he wrote.

How Exactly Does A Recall Election Work in Barnstable?

I raised a question in my post back on July 19 - "Another Recall Attempt?".

Having read and reread the section of the town's charter dealing with recalls, I have to wonder exactly how a recall ELECTION process works in Barnstable. Maybe one of Barnstable's town attorneys could fill me in, but I'm still unclear on how the process works. I have a pretty good idea, but am always open to other suggestions.

The highest profile recall election in recent years occurred back in 2003. Governor Gray Davis of California had presided over some bad economic times in California - the state budget was a mess and electric rates had tripled. All necessary steps were completed to result in a recall election. When voters went to the polls to vote on the recall, they had TWO things to do - Vote YES or NO on whether or not to recall Davis AND Vote for his replacement IF he ended up being recalled.

A number of high profile candidates ended up on the ballot as possible replacements, and when the dust had settled, the people had voted to recall Davis and the replacement candidate with the most votes was selected as the new governor. That is how former actor (and alleged Republican) Arnold Schwarzenegger became Governor of California.

California placed the recall question and the replacement election on the same ballot. However, after reading Barnstable's charter, I am pretty sure that there has to be TWO SEPARATE elections. Here are some quotes from the charter:

Section 8-8 Recall of Elected Office Holders
(c) Recall Election
If the petition shall be found and certified by the town clerk to be sufficient, the town clerk shall submit the same with such certificate to the town council within five working days, and the town council shall forthwith give written notice of the receipt of the certificate to the officer sought to be recalled and shall, if the officer does not resign within five days thereafter, order an election to be held on a date fixed by them not less than forty five and not more than sixty days after the date of the town clerk's certificate that a sufficient petition has been filed; provided, however, that if any other town election is to occur within sixty days after the date of the certificate the town council shall postpone the holding of the recall election to the date of such other election.

The recall election for any officer elected by precinct, shall only be held in the precinct that the officer represents.

If a vacancy occurs in said office after a recall election has been ordered, the election shall not proceed as provided in this section.

(e) Office Holder
The incumbent shall continue to perform the duties of the office until the recall election. If said incumbent is not recalled, the incumbent shall continue in office for the remainder of the unexpired term subject to recall as before. If recalled the officer shall be deemed removed and the office vacant. The vacancy created thereby shall be filled in accordance with this charter. Any person appointed to fill the vacancy caused by such recall shall hold office for the unexpired term of the officer recalled.

How does the charter say that a vacancy on the Town Council shall be filled?

Section 2-5 Filling of Vacancies
If a vacancy occurs in the office of councillor occurs during the first forty-four months of a term, it shall be filled by a precinct election. If a regular town election is scheduled to be held within 120 days, but more than fifty days, after the date vacancy occurs, it shall be filled by a special election within that regular election; otherwise, the council shall schedule a special election to be held as soon as is practical to fill the vacancy for the balance of the unexpired term. The provisions of the charter governing regular elections shall, so far as they are apt, apply to said special election, provided no preliminary election shall be held.
(Amended by Town Council item 91-03-02 on 6/20/91; amendment approved by voters 11/5/91).

Perhaps, one could read Section 8-8(e) that says "Any person appointed to fill the vacancy caused by such recall shall hold office for the unexpired term of the officer recalled" as saying that we should have a recall like California's - recall question and replacement election on the same ballot. BUT that comes AFTER the section says that "The vacancy created [by a successful recall] shall be filled in accordance with this charter."

Now, as I read that section, I am left to conclude that we have a two-part recall election process. Section 2-5 specifically deals with vacancies in Council office. It says that IF a town/precinct election is already being held 50-120 days AFTER the vacancy occurs, then a special election will be piggybacked on it OR if that doesn't exist, then a special election shall be held as soon as practical. It does not seem to allow for a vacancy to be filled on the same ballot as a recall designed to create a vacancy.

A vacancy can NOT possibly occur until a recall election has happened. Then, IF the Councilor has been recalled, a special election (or special ballot question added onto that precinct's ballot for an already occurring election) can occur. That's the way I read the charter.

Now, maybe I'm wrong... but if I am, could you please fill me in with the facts? Comments are open... and frequently monitored... or email @ dedicatedprecinct3voter@yahoo.com

Defining "Elective Office"

Barnstable Town Charter:
Section 3-2 Eligibility
"Any voter shall be eligible to hold any elective town office provided that, no person shall simultaneously hold more than one elective town office."

Dictionary.com
e·lec·tive -adjective
1. pertaining to the principle of electing to an office, position, etc.

of·fice –noun
5. a position of duty, trust, or authority, esp. in the government, a corporation, a society, or the like: She was elected twice to the office of president.


There has been a lot of discussion on Greg Milne's attempts to serve on both the Town Council AND the Charter Commission. While some people see the obvious clarity in our town's charter - that you cannot be elected to two town wide positions - others try to play games with words.

The town charter says ONE "elective town office" per person (at a time). It is obvious that "town" means town-wide, and courtesy of dictionary.com we see that "elective" refers to an election and "office" is a "position of duty, trust or authority, esp. in the government". I think it would be VERY fair to define the Charter Commission as a "town-wide elected position of authority in and/or over the government".

Serving in both positions would not only be a violation of the town charter, but it would also be a direct conflict of interest. Charter Commissioner Milne would have the ability to directly impact his position as Town Councilor Milne. Whether sabotaging the effort to maintain his Council seat, determining a number of Councilors that makes his reelection easier, changing the term limits for Town Councilors, or a whole host of other options, Milne could have direct access to change the power a Councilor has (albeit subject to voter approval).

Frankly, this issue is only brought up by the town's costly vocal minority. By playing with words and saying that "other towns do it, so it must be OK", they have tried to place their friend onto a board that they could not be voted onto. Enough is enough with them and the Milne situation. It's time we stopped listening to the advice of COGers - they are the same group who tried to force people to create an "elected" position out of thin air by signing their flawed and illegal Meeting of the Voters petition.

Open Meeting of the Voters - Correcting the Errors of the COGers

Next Tuesday - May 06, 2008 - There will be an "Open Meeting of the Voters" for Barnstable Residents at the Knight Auditorium in Barnstable High School Auditorium.

It is your responsibility to make it to this meeting if you can. The meeting will be open to ALL topics, though many of the COG persuasion will try to make it about their agenda. You need to be there to add common sense to the debates. Those who agree with the COGers (and are less satisfied with this town than most) are going to try to make this meeting into a roast of the Council. It is time to let the COGers know that they are the minority, albeit a very loud minority.

The fact is that the steam behind this "meeting" was started out with a COG agenda. They were able to gather 300 signatures to their petition to call a meeting. Now, I have practice getting signatures, and I could get 300 signatures in a day, just from people who want me to leave them alone. Anyway, when they turned their petition in, it was ruled invalid for a few reasons.

First, their petition contained language that "elected" a prominent COGer as the "Moderator" of the meeting. Two problems with that - You cannot VOTE for and "ELECTED" position by signing a petition. You must have an ELECTION that all voters can participate in and people can run for. Two - the Charter, which allows for the meeting, never even mentions any "Moderator" position. So their rigged "election" is a double phony.

Second, their petition contained language that would have given it subpoena power. In order to force someone to appear at an event (court, town meeting, governmental inquiry, etc...) you must have subpoena powers. This petition tried to use such powers to FORCE a specific list of people to attend, when a petition cannot have subpoena power, nor can the Town Council President. So, no one can force anyone to attend the meeting.

Third, some members of the COG meeting drive sought to limit attendance at the meeting to only those that signed their petition (and the people the wanted to FORCE to come). In my opinion, not only does such a measure break the Open Meeting Law (which the COGers have accused the Council of breaking in the past), it also would have unfairly restricted your right to government oversight and free speech. The Charter NEVER restricts who may attend an Open Meeting of the Voters.

Because of the highly illegal and unauthorized language contained in the COG petition for an Open Meeting, Town Attorney Ruth Weil correctly ruled that their petition was invalid. However, the Council, which has the ultimate say on whether or not an Open Meeting occurs, decided to hold one anyway. This meeting will have no limits on who may attend or what may be discussed. No one will be forced to attend (I know that at least one town official will not be attending), but I recommend that we send so many people over to that auditorium to shout down the COGers, that we have people flowing into the parking lot. Hope to see you there.

Keeping My Comments Brief

I am too much of a perfectionist. If I don't have the time to do it right, I probably won't do it. That's probably why I have stayed away from this blog. It's enough to have to read about these stories over and over again, but having to write about them can be overwhelming.

So, I'm going to hit on four of the "hot button" topics going on right now.

The Open Meeting of the Voters
"The town council may call meetings of the voters of the town. Upon the request in writing of three hundred voters setting forth the purpose (the specific purposes) thereof, the town council shall call a meeting of the voters. The president of the town council or other designee of the town council, shall preside and regulate the proceedings of such meetings. The president of the council shall cause the attendance of town officials and employees necessary to respond to the issues and concerns raised by petitioners." - Barnstable Town Charter

Nowhere in that paragraph of the town charter, the ONLY one mentioning the Open Meeting of the Voters, does it mention a "Moderator" position. Yet, the petition circulated by COGers, said "By signing this petition you will 1) Elect John Julius as the Moderator for the Petitioners".

What EXACTLY is a "Moderator for the Petitioners"? Who gave the writers of the petition the right to circumvent Massachusetts Election Law and deny me my right to vote or run for this position? Did anyone else run?

The fact is that no one knows what the position is. A petition does NOT have the legal authority to ELECT anyone to a position. This petition can not possibly be legal.

The Charter is clear that the Town Council "calls" the meeting - which means that they get to set the date. The Charter is also clear that the Town Council President runs the meeting - Sorry COGers, but Janet will be leading your meeting, how ironic.

Another Lawsuit / Greg Milne's Eligibility
What I want to know is which COGer is a lawyer? Because they just LOVE suing the town for no reason. Enough with the silly lawsuits and the ACLU and the Attorney General's Office. When they haven't gotten back to you in 8 months, they're not going to get back to you. Please stop wasting time & money with frivolous lawsuits.

Can't we get over the Milne Charter Commissioner thing? It seems pretty clear that the charter says a person cannot hold more than one elected office. Greg tried for two on the same ballot. He only gets one.

For the people complaining about the late Town Attorney Smith's "Home Rule", there is similar legal precedent. Federal environmental regulations are set by the EPA. However, the states have the right to set their own standards, as long as, their regulations are MORE strict than the federal ones. The same idea applies here. The state said they would not regulate the number of elected positions a person could hold. Our town came in and wrote into our charter (which was approved by the State Legislature) a stricter regulation on holding elected offices. They have merely strengthened State law.

Shellfishers vs. Landowners
Fishermen and shellfishers hold an iconic place in Cape Cod history and Cape Codder hearts. I want to see them succeed. I am tired of government regulations hurting these industries. That's EXACTLY why we shouldn't create another overreaching government regulation banning construction. The government can tell me whether or not I can build on MY land, how high I can build it, and whether I should build it again because they don't think it met their "building code". Enough with government intrusion into peoples' lives. It should stop now. NO to the proposed dock ban.

New Building
This leads me to my final point. Why is it that Circuit City has to jump through more hoops than a circus animal to get their building approved when a mega-Nursing Home gets approved without much of a fight? Why had no one heard about this huge home before it was approved? Enough with the town building cap and two acre zoning and all these crazy building regulations. They have driven property "values" through the roof, raising the residential property tax burden, misrepresenting our fiscal status to the State Legislature and leaving homeowners with "$600,000" homes that are barely worth half that on the market.

Final Beef
Actually, I need to correct myself. I have one more issue. Lately, I have been noticing more issues with street flooding when we get any decent amount of rainfall. Has anyone else been having or seeing the same issue?