Subverting the Charter is unacceptable

UPDATE: I retract this post. Not in full, but in part. There's no subversion here. Special appropriatons in excess of $350,000 do not require a referendum, if they are related to a grant. I was wrong and I sincerely apologize for that. Nonetheless, I still assert that this is not a "legal" question at all. It's a political question that should be framed as such. Again, I apologize.

Over on TPL, Tony is telling us about a recent Council / BOE meeting at which the Council Budget Committee indicated their willingness to bypass the Charter and spend $367,000 without going to referendum. This is unacceptable because the Charter requires this special appropriation – and anything in excess of $350,000 – to go to referendum.

If this happens, it will be a subversion of the Charter and should not be tolerated by those who care about good government. But I'm confident that if anyone tries to thwart their efforts, the Council will have all sorts of straw men arguments to defend their subversion of the Charter. So I offer here some explanation to good government advocates who are compelled to stop this subversion. Specifically, I'm explaining:

1) The likely reason they appear poised to subvert the Charter; and

2) The straw men they’ll likely use to defend their actions and achieve their true goal.

Why is the Council intent on subverting the Charter?

Simple.

It’s an election year. There are potential political downsides to not expeditiously forwarding this money to the BOE.

What are those downsides?

Again, simple.

The Council has been quite favorable to spending money this year on all sort of things… the turf, the trail, sidewalks, etc. And I understand that two GOP Council members are quietly advocating that the Council spend money to replace the bubble. How would it look to the voters if, after all of that, they oppose spending money on education?

The GOP Council has created a potential repeat of the November 2005 election in which the GOP lost the Council majority and every other elected body. That happened largely because the Council passed the “zero budget,” but pushed for the linear trail. Effectively, many voters concluded that the former GOP Council did not have the right priorities. It was “recreation before education.” That didn’t fly with the voters in 2005… and the current GOP Council has the same concern. They hope that by voting in favor of this special appropriation, they’ll avoid a repeat of the 2005 general election. But if that’s the case, you may ask:

Why don’t they simply vote in favor of this $367,000 special appropriation and be done with it?

Yet again, simple.

The concern about “recreation before education” is a political concern about infuriating Democrats and losing independents in the November general election. But if -- in an attempt to address the concerns of these voters -- they simply vote on this special appropriation, they face another challenge.

Incumbent Republicans face the distinct possibility of being outflanked on their right and face defeat via primary elections. And yes, that absolutely could happen. I’ve been actively following local politics for a decade. The past few months have been the first time I’ve ever heard anyone talking about local primaries… and those comments have come from a number of different people. They are people who vote, but generally have not been involved… and have now become incensed with all of the aforementioned votes on spending.

These potential primaries are also a reason for the quick vote that bypasses the Charter. The Council wants as little visibility on this issue as possible. They don’t want repeated headlines on additional spending that will further infuriate fiscal conservatives. And a special referendum would generate many additional headlines.

In my opinion, that’s the real explanation for why the Council is moving fast to move this money to the BOE.

However, the Council argues that they are legally required to transfer this money. On the surface, their explanation “It’s the law” is entirely plausible. So some additional questions must be asked to determine if their plausible explanation is a valid explanation. In other words:

Is this really about the law or is this a straw man?

Simple.

It is a straw man.

Based on reading Tony’s post, it is obvious that the Council is framing this as a legal issue. But this isn’t their primary concern. It is only a concern where it suits their purposes.

What do I mean?

Simple.

If the law is the concern, then:

1) Why are they only addressing this year’s budget? Why not prior years?

and

2) Why are they only addressing state funding for special ed? Why not ECS or other education-related state funding sources?

To these points… based on memory, I’m fairly certain that there are similar laws for other education-related state funding sources. So if this is truly about the law, then they must be consistent about all funding sources (that are similarly mandated) and vote on funding retroactively.

But it seems to me that this is not about “the law.”

And another important question… if this is about the law, then what is the enforcement mechanism? And what are the penalties? If there is no enforcement mechanism and there are no legal penalties, then couching this as a “legal” issue is a red herring.

This is a public policy question… some may call it a “political” question. Regardless, however you look at it, this is not a “legal” question. The Council is simply framing it as a “legal” question because, as I explained above, they want to get reelected. And they view this as the most politically expedient path to their reelection.

This brings me to the most critical part of this issue: the “cover” for their straw man.

Now please understand, this is fairly speculative on my part. But it is based on my seven years of Council experience. This is how I’ve seen Council majorities act in the past… and it’s done with the complicity of their political appointees.

If a voter attempts to ask “tough” questions, either the Council – or their political appointees – will often tell the truth, but not necessarily the whole truth. For example, responses are often given as a “double negative” with wiggle room:

Voter: Do you agree?
Town official: I don’t disagree.

Town officials must be pressed for crystal clear answers, not partial truths.

Now here’s where I foresee the possible “truth, but not the whole truth” come into play.

The Council will ask legal counsel (perhaps via the TM) “Is the Council legally required to transfer these special ed funds to the BOE?”

I expect that the answer will be “yes.”

But back to my previous questions...

If the law is the concern, then:

1) Why are they only addressing this year’s budget? Why not prior years? and

2) Why are they only addressing state funding for special ed? What about ECS funding? What about other sources of state funds?

Those are some of the questions that should be asked of Council members. Unfortunately, this is a situation where email is irrelevant. I’ve already tried and gotten crickets, thus far.

This is the classic situation where the bully pulpit and high visibility are required. These are questions best asked during a televised Council meeting. And the questioner must be prepared to extemporaneously parse the explanations being given. And if the “3 minute” rule is invoked, it may be necessary to have multiple voters standing ready to continue the questioning. It’s not easy, but I’d be thrilled if it happened. The Council needs to be publicly challenged on this.

But back to the title of this post… my concern is not about sending these funds to the BOE. Heck, education should always be a higher priority than recreation. That’s a no-brainer. And transferring the volatility of the state’s annual budget to the BOE is also a no-brainer.

My concern is the subversion of the Charter.

Fundamentally, this is not a legal issue. This is a Council vote like any other. And this appropriation must be sent to referendum. Failure to do so will be an intentional subversion of the Charter.

I encourage the voters to step forward and demand answers. The risk here is great. If what I’ve laid out is correct, this will be setting a precedent from which there is no return. This Council will have demonstrated that it feels it is above the law and accountable to no one.

Subverting the Charter is unacceptable, but it may still be possible to convince the Council to change course. There is still time to act.

Tim White