Andrew D. Nebenzahl, Chairman
Sharon Charter Commission
90 South Main Street
Sharon, MA 02067
RE: Preliminary Report of the Sharon Charter Commission
Case # 5321
Dear Mr. Nebenzhal:
Pursuant to the provisions of General Laws Chapter 43B, Section 9, we have reviewed the Preliminary Report of the Sharon Charter Commission (“Commission”) received by this Office on September 10, 2009. General Laws Chapter 43B, § 9 (b) requires that, within four weeks after receipt of the preliminary report, the Attorney General must submit a written opinion setting forth any conflict between the proposed charter or charter revision and the Constitution and laws of the Commonwealth. Pursuant to G.L c. 43B, § 9 (b), the opinion of the Attorney General is advisory only. “Under G.L. c. 43B, § 9 (b) . . . the Attorney General’s role is . . . limited to the issuance of an opinion, that is advisory only, as to whether the proposed charter or charter revisions are consistent with the constitution and the laws of the Commonwealth. Indeed, the issuance of the opinion does not preclude the [town] from putting the charter revision on the ballot or carry with it any constitutional or statutory impediment to adoption of the proposed charter.” Quigley v. Reilly, 13 Mass.L.Rptr. 480, 2001 WL 950904 * 1 (Mass.Super. Aug. 17, 2001) (No. C.A. 1-1218-A).[1]
The Attorney General now issues this written opinion to the Commission setting forth the following conflicts between the proposed Charter (“Charter”) and the laws of the Commonwealth. Our reasons for concluding that portions of the proposed Charter conflict with the laws of the Commonwealth are provided in more detail below.
I. GENERAL OVERVIEW OF THE CHARTER.
The Charter submitted to the Attorney General for review establishes the Town’s organizational structure and the division of authority among government officials. According to the Commission’s summary of the Charter, the Charter consists of eight articles: Article 1 – “Incorporation; Short Title; Definitions”; Article 2 – “The Legislative Branch”; Article 3 – “ Elected Officers”; Article 4 – “Town Administrator”; Article 5 – Administrative Organization”; Article 6 – “Finance and Fiscal Procedures”; Articles 7 and 8 – “General and Transitional Provisions.”
A. Summary of Article 2 – The Legislative Branch.
As more fully explained below, the Attorney General concludes that certain provisions of Article 2 are in conflict with the laws of the Commonwealth.
Article 2 of the Charter pertains to the Legislative Branch of the Town. According to the Commission’s summary, Article 2 creates “a form of local legislature unique in the Commonwealth.” Section 2-1 dictates that “[t]he legislative powers of the town shall continue to be exercised, ultimately, by a town meeting open to all voters, but, as modified by the provisions of this Article which provide for a steering committee to act, in the first instance, on all legislative matters.” Specifically, the Charter establishes a Steering Committee that reviews proposed warrant articles and makes “recommendations” that, ultimately, may have the force of law even without subsequent action taken by Town Meeting. All warrant articles will first be addressed by an elected Steering Committee. The Steering Committee will have the authority to accept a proposed article, reject a proposed article, or take no action. If the Steering Committee decides to take no action on a proposed article, it will then report the proposed article directly to Town Meeting for consideration. If the Steering Committee takes action on a proposed article, it will be deemed final, unless it is appealed to Town Meeting by at least 3% of the Town’s registered voters. If such an appeal is brought, then Town Meeting will vote either to accept or reject the proposed article in the exact language considered by the Steering Committee, with no amendments allowed on Town Meeting floor except in limited circumstances regarding articles to appropriate money. (Charter, Section 2-14(g) (3)).
Even though the Charter requires that “[t]he legislative powers of the town shall continue to be exercised, ultimately, by a town meeting open to all voters…” (Charter, Section 2-1), the practical effect of the Article 2 provisions is that Town Meeting will only be called to consider those articles: 1) on which the Steering Committee takes no action, or 2) which are “appealed” to Town Meeting after Steering Committee action.
II. CONFLICTS BETWEEN THE CHARTER AND THE LAWS OF THE COMMONWEALTH.
The Attorney General concludes that certain provisions of Article 2 and 3 of the Charter conflict with the laws of the Commonwealth in the following respects: 1) the Charter impermissibly restricts the legislative power of Town Meeting in contravention of G.L. c. 39, § 10; 2) it invalidly restricts the citizens’ right to include subjects on a warrant for a Town Meeting in violation of G.L. c. 39, §10; 3) it provides for the filling of vacancies on the Board of Selectmen in a manner inconsistent with G.L. c. 41, § 10 and G.L. c. 43B, § 20; and 4) the Charter conflicts with G.L. c. 43B, §20 (c) because it allows for an even number of school committee members.
A. The Steering Committee/Town Meeting Process Impermissibly Restricts the Legislative Power of Town Meeting.
The Charter purports to continue to vest the legislative power of the Town in Town Meeting, but unduly restricts the voters’ participation in Town Meeting contrary to state law.
1. Town meeting in general.
“Town meetings in Massachusetts have two basic functions: (1) their part in the election process, and (2) their function as the legislative arm of each Massachusetts town. These two basic functions may be performed in the same session of an open town meeting, or in separate ‘election’ and ‘business’ (or ‘deliberative’) sessions of the town meeting held at different times and places under the same warrant. The election portion of limited town meetings, and the election and business phases of open town meetings, are open to all residents of the town who have been duly registered as voters therein.” Opinion of the Justices, 358 Mass. 838, 840-841 (1971).
Town Meeting serves as “the legislative body for the town.” Conroy v. Conservation Commission of Lexington, 73 Mass.App.Ct. 552, 558 (2009); see also Local 1652, Intl. Assn. of Firefighters v. Framingham, 442 Mass. 463, 466 n.2 (2004)(“the legislative body for a town is the town meeting.”). “The distinctive characteristic of town government . . . is the town meeting . . . in which are vested the traditional powers of the legislative branch of any level of government, i.e. the power to make laws (by-laws) and the power of the purse.” Wright v. Town of Bellingham, 2007 WL 1884657 (Mass.LandCt.), quoting Town Meeting Time, 2d Ed. 1984. Apart from certain statutory exceptions, only Town Meeting can exercise the legislative power of the Town. Courts have taken a dim view of exercises of legislative power by Town bodies other than Town Meetings. See, e.g., SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 108 (1984) (by-law improperly delegated legislative authority to zoning board); Fluharty v. Bd. of Selectmen of Hardwick, 382 Mass. 14, 16 (1980) (board of health cannot authorize a violation of a valid ordinance or by-law); Kelley v. Bd. of Health of Peabody, 248 Mass. 165, 169 (1924) (vote of board of health authorizing violation of ordinance is void).
This exclusive legislative power of Town Meeting is illustrated by the myriad statutes which require town meeting vote or approval for town actions. For example, Town Meeting must authorize the appropriation of money from the Town’s general fund for the exercise of the Town’s corporate powers. G.L. c. 40, § 5. In addition, zoning by-laws may only be adopted or amended through Town Meeting action. See G.L. c. 40A, § 5 (“No zoning ordinance or by-law or amendment thereto shall be adopted or changed except by . . . a two-thirds vote of a Town Meeting . . .”). In addition, Towns must obtain either a majority vote or a two-thirds vote at Town Meeting in order to incur debt. See G.L. c. 44, § 2 (“Except as otherwise expressly permitted by law, cities, towns and districts shall incur debts only in the manner of voting and within the limitations as to amount and time of payment prescribed in this chapter. . . . ”); G.L. c. 44, § 7 (“Debts may be authorized under this section only by a two-thirds vote.”); G.L. c. 44, § 8 (“Debts, except for temporary loans, may be authorized under this section only by a two-thirds vote.”); and G.L. c. 44, § 1 (“‘Majority vote’ and ‘two thirds vote’, as applied to towns or districts, [means] the vote of a majority or two thirds, respectively, of the voters present and voting at a meeting duly called . . . ”).
2. The Charter impermissibly restricts the voters’ exercise of legislative power at Town Meeting.
The Charter proposes that Town Meeting will only be called to consider those articles: 1) on which the Steering Committee takes no action, or 2) which are “appealed” to Town Meeting after Steering Committee action. This format conflicts with the voters’ exercise of legislative power at Town Meeting in several respects. As an initial matter, if the Steering Committee takes action on a matter and the voters fail to obtain a sufficient number of signatures to “appeal” the matter to Town Meeting, then Town Meeting will not be called and the Steering Committee’s action is final. Such final legislative action by the Steering Committee is in conflict with those statutes which require Town Meeting action for the exercise of the town’s legislative power, including G.L. c. 40, § 5 (appropriation of money), G.L. c. 40A, § 5 (adoption or amendment of zoning articles) and Chapter 44 (authorization for the town to incur debt). This is an invalid delegation of legislative power away from Town Meeting.
3. The Steering Committee does not qualify as a Town Meeting.
An argument might be made that the Steering Committee itself qualifies as a town meeting and thus can validly exercise the legislative power of the Town. However, the Steering Committee is not a qualifying Town Meeting because it fails to meet at least three state law requirements for a duly constituted Town Meeting. First, all Town Meetings must be called by a warrant. G.L. c. 39, § 10. Second, a town moderator shall preside over Town Meetings. G.L. c. 39, § 15. Third, the town clerk must maintain the official record of votes and proceedings. G.L. c. 41, § 15. Because the Steering Committee meets without being called by a warrant, without the presence of the town moderator, and without the presence of the town clerk, it is not a proper form of Town Meeting.
a. Town Meetings must be called pursuant to a warrant.
All town meetings must be called by a warrant. General Laws Chapter 39, Section 10, pertains to Town Meeting warrants and provides in pertinent part as follows:
Every Town Meeting or town election, except as hereinafter provided[[2]], shall be called in pursuance of a warrant, under the hands of the selectmen, notice of which shall be given at least seven days before the annual meeting or an annual or special election and at least fourteen days before any special Town Meeting.
The warrant requirement is more than a mere technicality. “The foundation stone of every Town Meeting is the warrant.” Richard B. Johnson et al., Town Meeting Time 12 (2001). The warrant is “the essence of the Town Meeting.” Attorney Gen. v. City of Methuen, 236 Mass. 564, 574 (1921). The purpose of the warrant is to inform residents of the time and place of the meeting and the subjects to be acted upon. Wolf v. Town of Mansfield, 67 Mass. App. Ct. 56, 59 (2006). Indeed, “[n]o action shall be valid unless the subject matter thereof is contained in the warrant.” G.L. c. 39, § 10.
The Charter does not provide that Steering Committee meetings are called pursuant to a warrant. Instead, the Steering Committee “shall meet at such times and places as the committee may determine by its own rules.” Charter, § 2-14 (a). Moreover, the select board’s referral of matters to the Steering Committee under Section 2-13 of the Charter does not qualify as a “warrant” under G.L. c. 39, § 10. Warrants must “state the time and place of holding the meeting and the subjects to be acted upon thereat.” G.L. c. 39, § 10. The Charter does not assure that the select board’s referral of matters to the Steering Committee will provide this requisite information to the Town’s residents. In addition, G.L. c. 39, § 10, requires that warrants shall issue at least seven days before an annual town meeting, and at least fourteen days before any special town meeting. The Charter provides for no such requirement in the procedures for calling a Steering Committee meeting. Since every Town Meeting must be called by a warrant, G.L. c. 39, § 10, Steering Committee meetings do not qualify as valid town meetings.
b. The Town Moderator preside over Town Meetings.
State law requires that a Town Moderator preside over all Town Meetings. General Laws Chapter 39, Section 15, provides that “[t]he moderator shall preside and regulate the proceedings, decide all questions of order, and make public declarations of all votes. . . .” The Charter does not require that the Town Moderator preside over Steering Committee meetings. For this additional reason, the Steering Committee meetings do not qualify as Town Meetings under state law.
c. The Town Clerk records votes at Town Meetings.
General Laws Chapter 41, Section 15, requires that the Town Clerk maintain a record of Town Meetings. “The Town Clerk shall record all votes passed at Town Meetings held during his term of office.” See also G.L. c. 39, § 15 (“the vote shall be recorded in the records by the clerk”). The Charter does not require that the Town Clerk attend Steering Committee meetings or otherwise maintain a record of matters voted upon at Steering Committee meetings. Therefore, Steering Committee meetings do not qualify as Town Meetings under state law.
In Attorney Gen. v. City of Methuen, 236 Mass. 564, 577 (1921), the Supreme Judicial Court considered whether a public hearing of a joint legislative committee on cities could be construed as a Town Meeting. The court concluded:
This was a hearing by a legislative committee. Its conduct and procedure were under the management of that committee. It was not presided over by the moderator of the town; no check list was used and no records kept by the Town Clerk. That was not a Town Meeting.
Similarly, the Steering Committee here fails to qualify as a proper form of Town Meeting. The Steering Committee is not called pursuant to a warrant, as required by G.L. c. 39, § 10. The Charter does not provide for the Town Moderator to preside over Steering Committee meetings, as state law requires. G.L. c. 39, § 15. Nor does the Charter provide for the Town Clerk to record all votes passed at Steering Committee meetings, as required by G.L. c. 41, § 15, and c. 39, § 15. Since it does not meet these statutory mandates, the Steering Committee fails to qualify as a Town Meeting and it cannot validly exercise the legislative power of the Town.
B. The Charter Invalidly Restricts Citizens’ Right to Include Subjects On a Warrant For a Town Meeting.
Section 2-14 (g) (1) of the Charter provides “[w]here the action recommended by the Steering Committee is Affirmative and Final or Negative and Final . . . the subject matter of the warrant article shall not be placed on a warrant for a Town Meeting session. . . .” Thus, Section 2-14 (g) (1) of the Charter restricts the ability of citizens to include subjects in the warrant for a Town Meeting in conflict with G.L. c. 39, § 10. General Laws Chapter 39, Section 10, requires selectmen to place on the warrant subjects that have been requested by the requisite number of registered voters and provides in pertinent part as follows:
The selectmen shall insert in the warrant for the annual meeting all subjects the insertion of which shall be requested of them in writing by ten or more registered voters of the town and in the warrant for every special Town Meeting all subjects the insertion of which shall be requested of them in writing by one hundred registered voters or by ten per cent of the total number of registered voters of the town whichever number is the lesser.
While Section 2-7 of the Charter[3] provides that the select board shall place on the warrant all petitions addressed to the select board by a town agency or by ten or more voters, Section 2-14 (g) (1) acts to prohibit certain matters from ever reaching Town Meeting. Thus Section 2-14 (g) (1) is in conflict with G.L. c. 39, § 10.
C. The Charter Permits the Filling of Vacancies in the Select Board in a Manner Inconsistent with G.L. c. 41, § 10 and G.L. 43B, § 20.
Section 3-1 (h) (2) of the Charter provides procedures for the filling of vacancies in the select board: “[i]f there is a vacancy in the office of select board member the remaining select board members shall [sic], after one week’s notice, by publication in a local newspaper of the date on which the vote shall be taken, the remaining select board members, the school committee, and the Town Meeting Steering Committee shall fill such vacancy by a joint vote.”
General Laws Chapter 41, Section 10, provides, “[i]f there is a failure to elect or a vacancy occurs in the office of selectman, the remaining selectmen or selectman may call a special election to fill the vacancy and shall call such election upon the request in writing of two hundred registered voters of the town, or twenty per cent of the total number of registered voters of the town, whichever number is the lesser. . . .” Section 3-1(h) (2) of the Charter is in conflict with G.L. c. 41, § 10, insofar as it limits the authority of the select board to call a special election to fill the vacancy, and it does not require the select board to call a special election upon the request of the requisite number of registered voters. Furthermore, by providing for the appointment of interim members of the select board, Section 3-1(h) (2) of the Charter is inconsistent with the mandate of G.L. c. 43B, § 20, that “in any town having a board of selectmen the members of such board shall always be elected. . . .”
D. The Charter Conflicts With G.L. c. 43B, §20 (c) Because It Allows For an Even Number Of School Committee Members.
Section 3-3 of the Charter provides that there will be a school committee of six members. We understand that the school committee currently has six members and has had six members for many years. However, the Attorney General’s role under G.L. c. 43B, § 9, does not include commenting on existing Town laws. Therefore, we have not analyzed whether there is a legal basis for the existing composition of the school committee having six members. General Laws Chapter 43B, Section 20 (c), provides that Charters may include provisions for the number of persons to serve as members of any multiple member body; provided, however, that all such multiple member bodies shall always consist of an odd number of members. Thus, Section 3-3 of the proposed Charter, which is currently before this Office for review, is inconsistent with G.L c. 43B, § 20 (c).
For the reason provided above, we conclude that certain provisions of Articles 2 and 3 of the Charter are in conflict with the laws of the Commonwealth.
III. Comments on Other Provisions of the Charter.
We also offer for the Town’s consideration the following cautions regarding other sections of the Charter which are not in conflict with state law but merit a comment for various reasons.
A. Article 3 “Elected Officers”.
1. Section 3-1 Elected Officers Generally.
a. Section 3-1 (h) “Filling of Vacancies in Elected Offices”.
Section 3-1 (h) (3) of the Charter pertains to the filling of vacancies in the Town Meeting Steering Committee and provides as follows:
If a vacancy shall occur in the office of town meeting steering committee member the remaining members shall forthwith give written notice of the existence of such vacancy to the select board. After one week’s notice, by publication in a local newspaper of the date on which the vote shall be taken, and the nature of the vacancy, whether at-large or from a precinct, the select board, the school committee, and with the remaining members of the town meeting steering committee shall fill such vacancy by a joint vote to fill the vacancy which exists. The person chosen to fill any such vacancy shall serve in such office until the next regular town election at which the balance of the unexpired term, if any, shall be filled by the voters.
Section 3-1 (h) (3) of the Charter authorizes the select board, school committee, and the remaining members of the Town Meeting Steering Committee to fill a vacancy in the Town Meeting Steering Committee. It is unclear whether a vacancy in a precinct Steering Committee seat is filled from a voter from that precinct or whether the vacancy is filled from any voter in Town.
b. Section 3-1 (i) “Recall of Elected Officials”.
Section 3-1 (i) (1) of the Charter pertains to recall petitions and provides as follows (with emphasis added):
Three percent of the town’s voters, as of the date of the last town election, may file with the Town Clerk an affidavit and a statement of the grounds for recall. If the said petition is found to be valid, the Town Clerk shall thereupon deliver to the first ten persons named on such petition blank forms demanding said recall. These blanks, available from the Town Clerk, may be completed by printing or typewriting; they shall contain the names and street addresses of the ten persons to whom they are issued and the grounds for recall as stated in the affidavit; they shall demand the election of a successor to the office; they shall be dated and signed by the Town Clerk. The recall petitions shall be returned to the office of the Town Clerk within twenty-one days following the date they are issued, signed by at least fifteen percent of the total number of persons registered to vote as of the date of the most recent town election.
Section 3-1 (i) (1) of the Charter requires three percent of the Town’s voters as of the “date of the last town election” to file an affidavit with the Town Clerk stating the grounds for a recall. However, Section 3-1 (i) (1) then requires recall petitions returned to the Town Clerk to be signed by at least fifteen percent of the total number of persons registered to vote as of the “date of the most recent town election.” While the “date of the last town election” and “date of the most recent town election” may refer to the same thing, it may be better form to reference the same term.
2. Section 3-2 “Select Board”.
Section 3-2 (d) of the Charter authorizes the Select Board to serve as the licensing authority in the Town and authorizes the Select Board to adopt rules and regulations regarding the issuance of licenses. We caution the Town that the Select Board has no power to adopt rules and regulations which are inconsistent with state law. “A town may not promulgate a regulation that is inconsistent with State law.” American Lithuanian Naturalization Club v. Board of Health of Athol, 446 Mass. 310, 321 (2006).
B. Article 5 “Administrative Organization”.
Section 5-1 of the Charter pertains to the organization of town agencies. Specifically, Section 5-1 (b) authorizes the Town Administrator to submit to Town Meeting a plan of organization or reorganization of the operating divisions of the Town. Specifically, Section 5-1 (b) provides that the organization or reorganization plan shall become effective at the expiration of thirty days following the date of final adjournment of Town Meeting. We caution the Town that if such organization or reorganization is adopted by Town Meeting as a by-law, the organization or reorganization does not become effective unless and until the Town complies with the provisions of G.L. c. 40, § 32.
C. Article 6 “Finance and Fiscal Procedures”.
1. Section 6-3 “Finance and Audit Committee”.
Section 6-3 (b) of the Charter establishes the powers and duties of the Finance and Audit Committee. The Finance and Audit Committee is required to file reports with the Steering Committee in such detail and at such time as may be provided by “ordinance.” We caution the Town that it is conventional to refer to towns as having “by-laws,” and cities as having “ordinances.”
2. Section 6-8 “The Budget”.
Section 6-8 (c) of the Charter requires a separate review petition to protest each line item of the budget. We caution the Town that a review petition on one line item has the potential to affect other items in the budget. As such the requirement of a separate review petition for each line item might be burdensome or unworkable.
D. Article 7 “General Provisions”.
1. Section 7-5 “Rules and Regulations”.
Section 7-5 of the Charter requires copies of rules and regulations adopted by town agencies to be filed with the Town Clerk. We again caution the Town that the Town agencies do not have the power to adopt rules and regulations, which are inconsistent with state law. “A town may not promulgate a regulation that is inconsistent with State law.” American Lithuanian Naturalization Club v. Board of Health of Athol, 446 Mass. 310, 321 (2006).
2. Section 7-9 “Removals”.
Section 7-9 of the Charter pertains to the removal of members of multiple member bodies who fail to “regularly attend” the meetings of such bodies. The phrase “regularly attend” is not defined in the Charter. The Town may wish to add a definition for “regularly attend.”
IV. Conclusion.
For the reasons provided in more detail above, the Attorney General is of the opinion that certain provisions of the Charter submitted to this Office under G.L. c. 43B, Section 9, is in conflict with the laws of the Commonwealth.[4]
Very truly yours,
MARTHA COAKLEY
ATTORNEY GENERAL
________________________________________
by: Kelli E. Gunagan, Assistant Attorney General
By-law Coordinator, Municipal Law Unit
1350 Main Street, 4th Floor
Springfield, MA 01103-1629
(413) 784-1240, x 7717
enc.
cc: Town Counsel
DHCD
[1] This advisory opinion procedure of G.L. c. 43B, § 9 (b) is thus different from the binding opinion issued after review of charter revisions proposed pursuant to the procedures set forth in G.L. c. 43B, § 10. Under G.L. c. 43B, § 10 (c), “[i]f the attorney general reports that the proposed amendment conflicts with the constitution and laws of the commonwealth, the order proposing such amendment shall not take effect. . .”.
[2] The exceptions provided in G.L. c. 39, § 10, do not apply to the procedures for calling a Steering Committee meeting.
[3] Section 2-7 (a) of the Charter also provides that “[t]he proponents of each proposed warrant article shall file a brief statement of explanation of the proposal.” We caution the Town that this directive could be in conflict with state law if failure to include such a statement served as grounds to prohibit a subject matter from being placed on the warrant. Citizens’ right to submit matters for inclusion in the warrant under G.L. c. 39, § 10 should not be refused for a failure to provide the “brief statement of explanation of the proposal.”
[4] The Town should be aware that petitioning the Legislature for a special act authorizing what it is seeking to do under the proposed Charter may be an option available to the Town.