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...

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.

Fraud?

Consider this excerpt from another well-known blog about Barnstable (the COG blog):

"Because Milne’s name appeared in Precinct 3 as a candidate for both Town Council and Charter Commissioner, 1,820 voters in all 13 precincts had their votes cast aside by the Town Clerk/Town Manager.

In the criminal law of common law jurisdictions fraud may be called "theft by deception," "larceny by trick," "larceny by fraud and deception" or something similar, because Milne's name was on the ballot, but he was conditionally permitted to sit in the position to which he was elected, ergo voters were defrauded.

Milne ran unopposed for Town Council, so the Clerk’s choice to accept his nomination papers for charter commission was a fraud on the voters."

General Issues With The Statement
This statement is wrong on a number of accounts, starting with the fact that Milne is NOT the Councilor from Precinct 3 (that is Jim Munafo). Councilor Milne represents the people of the 13th Precinct.

For some unknown reason, Gary Lopez (author of COG) has a problem with the Town Clerk. He has tried numerous times to attack her on her handling of the Open Meeting of the Voters petition. He even continued when some of his closest allies were posting on his site in defense of the Clerk. It seems like he is looking for things to blame the Town Clerk for.

Closer Look at Accusations of Fraud
Let's look at the meat of his accusations - he claims two things. One, the voters were defrauded because their votes (for Milne as Charter Commissioner) were not counted. Two, the voters were defrauded because Milne's name was on the ballot.

One: Were the voters of Barnstable defrauded because their votes for Milne were not counted (ie Milne does not serve on the Charter Commission)?
The question here is who did the defrauding? Greg Milne knew the town's official interpretation of the charter. He knew that, according to this opinion, one person cannot hold ANY two elected town-wide offices at the same time. He was explicitly told that that was the town's official position - for Charter Commission as well. If Councilor Milne had had a problem with that policy at that time, then that was the time to start challenging the policy. He chose not to.
Greg Milne pulled papers for Charter Commission knowing full well that what is happening now would probably happen. Yet, he did not care.

Two: Were the voters defrauded because Milne's name was on the ballot for Charter Commissioner?
Milne did an excellent job of being a politician before the election. When asked which position (Town Councilor or Charter Commissioner) he would take, should he win both positions, Milne refused to answer. He never made it clear which position he wanted more than the other.

Now, as far as I know, while the Town Charter prohibits people to one elected town-wide position (including Councilor), it does not limit them to one place on the ballot. The Town Clerk had no reason to take him off the ballot. So, Milne's name was going to be on there for both positions.

However, knowing he was unopposed for Council, he could/should have told people IF Charter Commissioner was what he really wanted. After the fact, his actions have made it clear that he wanted to be a Councilor first. Knowing THAT he wanted to be a Councilor and the fact that he was unopposed in that election, he should have withdrawn his name for Charter Commissioner. Instead, he chose to sue the town.

People in other parts of town are unlikely to know what is happening is other precincts' Council elections. Many people who voted for Milne may not have known he was running for two positions. If they did, they did not know which one he really wanted, so Milne supporters went the "safe" route and voted for him.

The fact is that even though Milne was unopposed for his Council seat, it was still POSSIBLE that a write-in candidate could swoop in and win the election. If that had happened with Milne having been denied the opportunity to run for Charter Commissioner, there would be an outcry occurring now that might actually have some merit, unlike what is going on now.

The closest analogy is the Senator who runs for President in his district's Senatorial election cycle. Fearful of not getting the nomination for President, the Senator pulls papers for both spots in the primary and runs for both. If he gets the nomination for President, he pulls out of the Senate race (because he can't be both Senator & President). If he misses the nomination, he falls back onto the Senate seat.

For Greg Milne, apparently Charter Commissioner was his "fall-back" position. Now that he got his main job, he is greedy and wants both. This would be like a Presidential candidate running for both Senate & President, winning both and insisting he can do both because he "got the votes".

The only people who have been defrauded are the people. They voted for him in both slots because they wanted to ensure he was in any office come November. The only person who defrauded the people is Gregory Milne - by placing his name on the ballot twice.

To make it simple, I do not think that the voters were the victims of fraud. However, if they were, it was fraud in Milne's refusal to talk to the people about his preferences...

Which brings us to the Open Meeting of the Voters... They think that they can force the Councilors to explain to them in detail exactly WHY they voted a specific way (when their own guy refused to say what office he wanted). These Councilors have routinely discussed their thought processes. They often speak at Council discussion. They probably would answer the phone if you had the guts to use it. But, for COGgers, that is not good enough. Let me just say this - If the Councilors are somehow forced to go to the meeting or forced to talk, they will be the only people in all of this that should speak to the ACLU.

ACLU
Enough with the ACLU... I love how the COGgers complain about the high taxes in the town and then go around looking for & making cases suing the town. Maybe if you weren't encouraging and backing people suing the town, they wouldn't need so many lawyers on staff. Enough with the frivolous lawsuits.

Oh, and by the way, COGgers, if you didn't notice, I read the nice letter the ACLU sent you... They told you, in so many words, that they want no part of this matter.

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?

Why Linda Hutchenrider Is Right

Linda Hutchenrider has made the correct decision. Tonight, when she refused to swear Greg Milne in as a Charter Commissioner, she made the right decision and followed the law.

Section 3-2 of the Barnstable Charter states:

Any voter shall be eligible to hold any elective town office provided that, no person shall simultaneously hold more than one elective town office.

Now, I don't know what could be more clear than that. This Section is an excellent example of checks-and-balances. It prohibits people from double-dipping. It prevents any one person from holding too much power.

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There is a contingent out there (including Milne) who insist that this clause is unconstitutional because it conflicts with the Massachusetts State Constitution. However, this is wrong.

The first line of the amendment to the constitution that lays out the procedure for Charter change says this:

It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters...

It is clearly the intention of the constitution that every city be granted freedom to govern their town as they see fit (within certain guidelines). They WANT us to govern ourselves and make our own rules.

Furthermore, our current Town Charter had to receive approval from the Massachusetts State Legislature before it became official. They deemed the document worthy and legal. They did not say that any part was unconstitutional. By approving the document, they declared it legal and binding for the citizens of Barnstable.

There is also some dispute as to whether or not Charter Commissioners are town "officers". Well, the fact of the matter is that Charter Commissioners were elected to serve in a town-wide position (or office). They are elected town officers!

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Did I mention that Section 3-2 is a genius article?

It serves so many purposes to protect Barnstable citizens:

• It stops any one person from serving in two elected positions at once. Therefore, you can't have power on the Town Council AND School Committee. You can't double-dip anywhere.
• It decentralizes power. It keeps a small group of people from running the town and/or multiple boards. Town Councilors can't run for School Committee too and control both boards with only 7 or so people.
• It also helps prohibit any conflict of interest. Because no one can serve in two elected positions at once, they can't use their power in one position to influence a decision in another. In other words, Greg Milne can't use his power on the Charter Commission to keep or remove his own Council seat.

Greg Milne needs to stop wasting taxpayer money. He should have read up on his current charter before rushing in to write a new one.