Town Meeting: Voters reject mixing branches of government (Updated)

by beth on May 25, 2021

On Saturday, voters rejected changes proposed to the Advisory Committee’s governing bylaws. The main sticking point was blurred lines between two branches of Town government.

Comments highlighted a divide between how some officials and voters view the relationship between the committee and the Town’s administration.

The plan before Town Meeting was essentially to codify and extend a situation that already exists on an “ad hoc” basis. That is the overlapping relationship between two committees that scrutinize town finances and Town Meeting Articles.

Town Meeting’s action now puts pressure on selectmen and Advisory to determine how to proceed leading up to the next Town Meeting.* (Which should be as soon as this fall. A special meeting is planned, but no date yet annnounced.) 

In 2020, the Board of Selectmen appointed an ad hoc Capital Planning Committee to focus on the Town’s pipeline of Capital Expenses. It was charged with “developing strategies to move these projects forward for approval in a financially responsible manner”.

Since April of last year, the committee has worked closely with Advisory. For most of that time, three residents served simultaneously on both committees. (That’s actually two more than the proposed Articles would have allowed.)

Selectmen were so impressed with Capital’s work to reduce expenses for the Town that they supported turning it into a standing committee.

Article 33 sought to create the Capital Improvement & Planning Committee with a similar but more detailed charge. Like Advisory, it would report to and advise Town Meeting. Unlike Advisory, it would continue to be appointed by selectmen who also oversee the Town departments the committee would work closely with.

To allow that, Advisory first sought to change rules prohibiting serving on a standing committee unless appointed to it by the Moderator (which is who appoints members to Advisory). As a compromise, the proposed CIPC rules would only allow one member to be appointed from Advisory.

Advisory’s Chair Kathy Cook made the presentation on Article 32 for her committee. (She previously served on both committees but recently stepped down from Capital.) She asked to reduce the number of members to nine from seven. She defended that the committee has been at seven for a while now and works well that way. She noted that when there are more it leads to absences. 

As for allowing Advisory members to serve on “one committee chartered to consider capital appropriations” she explained that the two committees’ work dovetailed and the collaboration made sense. 

Most critics of the rule change focused on Advisory’s intended role, working for Town Meeting voters as an independent check on selectmen and other Town officials/departments.

Resident Karen Shimkus told voters that the change would be a clear violation of state statute.** That was rebutted by Town Counsel. Revisiting the microphone, Shimkus stressed that the overlap creates a conflict of interest. 

Shimkus noted that Advisory (which is the Town’s Finance Committee) has the Mass Municipal Association’s Finance Committee’s “Role of the Finance Committee” posted to its website. She quoted from it:

Without finance committee independent review, the town meeting would be at a severe handicap in voting on financial matters when all of the recommendations are coming from one source. Separation of powers was designed by our founding fathers for a reason—Defend It

Resident Whitney Beals questioned why Moderator Paul Cimino hasn’t been seating 9 members as written into the bylaw.*** Cimino defended that the mix and quality of people on the committee is the most important standard. He claimed the vacancies were due to it being hard to find volunteers to do the “grueling work”.

Beals asked if the number of members was reduced to seven, what would stop Cimino from seating only five. He argued that would be too small a group. Cimino agreed with the latter point but didn’t directly respond to the first. 

Freddie Gillespie (who serves on multiple Town Committees) urged voters to reject the change. Latching on to the “grueling work”, she opined that the change would make it harder to find volunteers.  

Others defended the plan, stating that members of Advisory offer important background knowledge and insight invaluable to the committee.

Former Advisory member Al Hamilton sided with the critics but opined that Advisory could play a valuable advisory role. Pointing to Town Meeting as the legislative branch he warned about mixing it with the executive branch. Hamilton initially moved to make an amendment that would change the proposed Article to allow Advisory to hold a non-voting role on the CIPC.

After another voter moved to indefinitely postpone the Article, Hamilton withdrew his motion.

Voters decided 76-52 to eliminate the Advisory Article. Selectmen promptly requested voters to do the same with Article 33 to create the CIPC.

Asked whether pulling Article 33, meant the Capital Committee would remain Ad Hoc, Selectman Marty Healey said the Board would have to decide. 

According to the Town website, the terms of members on the Capital Committee are all set to expire on June 30th. The Committee’s charge doesn’t specify an end date (though it did specify a deadline to report to selectmen by December 31, 2020).

*This is one of at least three Town Meeting outcomes that selectmen will have to grapple with. They will also need to address a successful non-binding Citizen’s Petition (Article 39) that asks the Board to study pursuing a truck exclusion on Flagg Road. (That passed overwhelmingly.) And a Citizen’s Petition Article that failed raised many voter voices in calling for selectmen to work on a better version to tackle the same issue – implementing a Noise Bylaw. (I’ll cover that in a separate post later this week.)

**Shimkus was a proponent of a 2019 Citizen Petition to make some changes of her own to Advisory’s bylaws. You can read about that proposal, which also failed to pass, here.

***Updated (5/26/21 8:48 am): I initially charactarized Whitney Beal as asking why the moderator had refused to seat all nine members to Advisory. He has commented that he didn’t use that word.

{ 13 comments… read them below or add one }

1 Were you paying attention? May 25, 2021 at 5:20 PM

[quoteAsked whether pulling Article 33, meant the Capital Committee would remain Ad Hoc, Selectman Marty Healey said the Board would have to decide. [/quote]

Article 33 is a warrant article! This IS NOT a BOS decision!!! Is BOS is going to simply override ATM voting, why bother to hold an ATM at all?

2021 Southborough ATM Warrant Article 33 called for the voters to make that decision – the creation of a Capital Improvement and Planning Committee – and it was REJECTED (Article 32 was deferred indefinitely and because Article 33 was coupled to it, it too was determined to be deferred)!

The emperor has no clothes!!!

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2 beth May 26, 2021 at 8:46 AM

Voters didn’t opine that there shouldn’t be a Capital Committee, just that it shouldn’t overlap membership with Advisory. Technically they didn’t even reject creating a CIPC, just postpone a vote at selectmen’s request.

The BOS doesn’t have the authority to make the Capital Committee a standing committee. But it does have the authority to continue to operate it as an Ad Hoc committee. They also could abolish it or revise its charge and membership.

Ad Hoc committees are meant to be temporary. But I couldn’t find anything dictating a cap on how long that temporary status could be maintained. Prior to the adoption of the EDC as a standing committee, it was in an Ad Hoc status for much longer than this committee has been operating.

I think it likely the Board will bring a revised Article to Special Town Meeting in the fall or to Annual Town Meeting next year. The question is, how will they and Advisory proceed in the interim?

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3 Al Hamilton May 26, 2021 at 8:49 AM

The BOS is completely within its authority to establish and appoint an ad hoc Capital Planning committee to assist the BOS in developing a capital plan for the departments under their control. They do not need the approval of Town Meeting to do so.

The BOS established Capital Planning committee would have no authority beyond the departments under the BOS. A Town Meeting approved Permanent committee would potentially have broader authority.

Under our current laws, one member of Advisory can be a member of a BOS ad hoc Capital Planning Committee. That member would have to recuse themselves when Capital Planning matters were before Advisory.

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4 Tim Martel May 26, 2021 at 9:48 AM

Al, regarding your second to last sentence, “Under our current laws, one member of Advisory can be a member of a BOS ad hoc Capital Planning Committee”…

Although the Advisory bylaw limits an individual Advisory member to joining only a single BOS ad hoc committee, it does not speak to how many total members an ad hoc BOS committee can draw from Advisory. Putting this in a technical sense, the cardinality of the relationship is 1:M and not 1:1

Of course, the BOS can put whatever limitations they want on their own ad hoc committees to limit Advisory or any other board in terms of membership. Specific to the Capital Planning Committee, there is no such limitation. And as mentioned, the Advisory bylaw does not speak to this side of the relationship.

Note: as you know, the Advisory bylaw does put additional restrictions on members who join other ad hoc committees, and this tends to regulate the matter fairly well. But it doesn’t go to the extent that you seem to desire (i.e. 1 and only 1 per ad hoc BOS committee).

References:
1. Section 9-8 of our Town Bylaws: https://ecode360.com/9539085?highlight=advisory&searchId=8454514690166653#9539085
2. Capital Planning creation verbiage: https://www.southboroughtown.com/capital-planning-committee

(you are, as always, very welcome to attend our meetings to work on a path forward to find something agreeable to all.)

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5 Karen Muggeridge May 26, 2021 at 10:33 AM

Tim, you beat me to clarifying this distinction. There could be more than one member of Advisory on CIPC or other ad hoc committees. The vote at ATM ensures what some at the meeting were arguing against.

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6 beth May 26, 2021 at 10:52 AM

To clarify – the Advisory Article would have still allowed the same potential of more than one Advisory member to serve on a committee. However, the proposed CIPC Article defined that only one member of Advisory would be allowed to serve on it. So, unless that was amended, or changed in the future, Advisory’s participation on it would have been capped if it passed.

Because the CIPC Article was pulled, technically two (or more) Advisory members can still serve on the Ad Hoc committee. Which means what happens will depend on how selectmen, Advisory, and Capital members choose to respond to the issue raised by TM voters.

7 Whitney Beals May 25, 2021 at 5:28 PM

While I appreciate being mentioned for speaking against the passage of article 32, I am sure that I did not use the word “refused” in describing my concerns that the moderator had not appointed the full complement of nine members to serve on the town advisory committee.

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8 beth May 26, 2021 at 8:31 AM

Sorry if that was inaccurate. I’ll revise it. Unfortunately, the video wasn’t available yet for me to check.

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9 Tom May 26, 2021 at 4:04 PM

Agree with Ms.Muggeridge that “. . .The vote at ATM ensures what some at the meeting were arguing against.”

Is this proposed overlap dangerous? A concerning power grab? Ripen an environment for conflicts? How does one join a committee handling big ticket items, vote on those big ticket items, then turn around and tell the Town Meeting floor how to vote? Could the overlap damage the independence and integrity of the process? This is why the Massachusetts Municipal Association promotes awareness of limits and prohibitions. See the following:
mma-finance-handbook-17oct2017.pdf (southboroughtown.com)

MMA Handbook: “Finance Committee members should also be aware that many towns and cities have by-laws or ordinances which limit or prohibit multiple office-holding.”
Excerpt: “. . . town bylaws. . .spell out the details of the budget process and the role and powers of the finance committee. Committee members should read these laws very carefully and be vigilant of attempts to bypass their critical function of providing INDEPENDENT and carefully considered advice to town meeting.
Also see: Town of Southborough, eCode:
No member shall be appointed who is a Town officer, employee or member of another Town committee, appointed or elected; provided, however, that an Advisory Committee member may belong to one ad hoc committee that is appointed by an elected board or official or one other committee appointed by the Moderator under . . .restrictions. . .”

One voter put it best: all committee are expected to work cooperatively with other committees, and that’s how it’s supposed to work. That doesn’t mean you join them as a member. At town meeting, the voters have overwhelmingly spoken. It’s not up to Advisory and Capital Planning to rejumble the warrant and serve again. BOS hopefully heard the voters serious and legitimate concerns loud and clear.

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10 Tom May 26, 2021 at 4:28 PM

Mr. Beals, your comments were timely and appreciated. As you may well know already, town bylaw calls for the filling of vacant seats. Contrary to the bylaw, the vacant seats have not been filled.

The bylaw reads as follows:
§ 9-9
Filling of vacancies: “. . .the Moderator shall, within 60 days after the date of his election or within 60 days after any vacancy occurs in the Advisory Committee, fill, for the unexpired balance of the term of any member of said Committee, any vacancy which may occur in the membership of said Committee and shall annually thereafter, as the terms of members of the present Advisory Committee expire, appoint three members for terms of three years each.

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11 Kathy Cook May 27, 2021 at 11:41 AM

I am writing as only one member of Advisory as obviously we have not had a chance to meet since TM.

I also really appreciate most everyone posting with their names. It really helps. And for other blog readers all posters with the exception of the two that did not use their full names are either current Advisory members or ex-Advisory members so have a lot of relevant background on this issue and I appreciate their input.

I would like to start with some background. Advisory started working on the proposed amendments to the Advisory by-law many months ago. We had several public meetings where the proposed changes were discussed. We asked former long term member John Butler to assist us with the changes. We had a healthy robust debate on the changes and in the end voted unanimously to sponsor the warrant article and to support it. In the time that Advisory debated the proposed changes, I talked to past members including Mr. Hamilton and Jim Hegarty who were on Advisory the last time the Advisory by-law was substantively changed in 2008 to make sure I understood the reasoning behind those changes. I therefore was very surprised (except from one person) at the reaction on Saturday to the proposed changes to the Advisory by-law.

Advisory will take up the proposed changes again over the summer. Don’t know where we will come out. For those that seem to believe there was some nefarious intent about the proposed changes – I am sorry to disappoint you. There was not.

After TM I received a very thoughtful e-mail from a resident who follows all Town matters closely. He was at TM and still somehow managed to send me the e-mail at 5:25 that day. The e-mail gave me pause and included some things for Advisory to consider going forward. It will be interesting to see how other Advisory members view his ideas.

Hindsight is 20/20. I wish now that we had put the two proposed changes in two different articles. They ended up being conflated and therefore confusing to those that were hearing the proposed changes for the first time – which was probably most everyone there. My own husband didn’t vote on the article because he said ” it sounded like there were some issues and it was confusing.” So I would like to separate the two issues now and request that anyone with a sincere interest in helping us address the changes that we believe should be made join us over the summer to give us your input. Or e-mail us with your full name and your suggestions. I have no intention of given much credence to posts like the first one.

With respect to the reduction in the number of members on Advisory from nine to seven – the primary reason that Advisory asked for that change is that we believe that a seven member committee is a more functional, effective committee. And that was based on our collective experience on Advisory and other committees that we have served on. I always use the example of the Public Building Safety Committee (PBSC) to which I was appointed as the Advisory liaison. In my opinion, PBSC was one of the most effective committees that Southborough has ever had. It is the committee that oversaw the building of the new Public Safety building. PBSC had nine members and it was at least two too many. The extra two members were not needed to do the committee’s work. Having nine members prolongs discussions AND discourages full attendance. Members know that their absence will not be an issue as a general rule.

I have been on Advisory for a long time. And saw the same thing there. Members missed frequently. There were few times that all members were there. Advisory has had seven members for a couple of years now. And hardly anyone misses a meeting and all members are up to date and current on all Advisory matters. It has really worked well. So it is our recent experience that was the primary reason for the proposed change. Nothing more.

I want this post to be constructive and informative but I do want to at least reply to those that criticize our moderator for not filling the current two vacancies. These are volunteer positions and therefore he does not draft people to serve. He has not had residents that he felt had the requisite background to be on Advisory volunteer for Advisory in the past few years. If he had he would have appointed them. Mr. Cimino takes his role as appointing authority very seriously which I can personally attest to.

We currently have a third vacancy due to Andrew Dennington’s recent election to the BOS. So if you are interested in serving please let Mr. Cimino know. Your interest in serving would be welcomed.

The second issue that the proposed by-law change attempted to address was the ability for an Advisory member to continue to serve on a standing committee whose mandate is to deal with the capital plan for the Town. Advisory knew that the BOS wanted to make the ad-hoc Capital Planning Committee a standing committee appointed by the BOS and therefore knew that our by-law would need to be amended if we wanted an Advisory Committee member to continue serving on it.

As Beth Melo has explained – the current ad-hoc Capital Planning Committee – originally consisted of 2 Advisory members – Andrew Pfaff and myself. When Jason Malinowski was appointed to Advisory last July that added a third as Jason was already chair of the Capital Planning Committee. I have since resigned because Advisory had a quorum issue with 3 members on Capital Planning. Advisory could not legally review and vote on the proposed capital plan from Capital Planning with our current by-law restriction so I resigned. The town capital plan is integral to the budget work that Advisory does so we had to solve the quorum issue.

I continue to believe that an Advisory member should serve on the BOS appointed capital committee – standing or ad-hoc. I do not agree with Mr. Hamilton and others as far as a blurring of the line between legislative and executive authority. We will however have a robust discussion of this over the summer and hope that some of you who are concerned will attend the meetings. This will not be resolved on this blog. And again – there was nothing nefarious about this proposal. It was simply a reaction to the fact that we thought the Capital Planning Committee would become a permanent, standing committee at TM.

And lastly, Advisory takes its role as an independent voice for Town Meeting and Southborough residents seriously. Anyone that regularly attends our meetings would know that. Our request to make the one exception to participation on a non moderator appointed standing committee was made with our overall role in mind and was made with very serious thought and advice from others.

Thanks for taking the time to read this.

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12 enhanced communication? May 27, 2021 at 2:54 PM

I heard the argument made in support of Articles 32/33 that cross membership would provide for better communication between CIPC and Advisory groups.

One can communicate effectively without joint/overlapping membership!

We have at least the following options: face to face, telephone, email, Zoom, text messaging…

So, without even getting into the legalities, there is NO NEED for joint membership!

BOS has the authority to decide whether to continue CIPC on an ad hoc basis or not. I believe it has been stated above, their (BOS) charter does not permit them to create CIPC as a standing committee, that’s up to the voters of Southborough.

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13 Tom May 28, 2021 at 7:15 AM

To Enhanced Communication above, could not agree more. This is exactly the point that the town meeting floor was sending in its overwhelming rejection of Articles 32 and 33. The voters of Southborough have spoken. Postponing indefinitely was a way for the Town Meeting voters to STOP those flawed and ill-conceived articles. The entire floor voted no. The only persons not understanding the message are the handful of proponents who don’t understand what NO means. Surprised? The proponents expected these articles to quickly slide through without question.

As for Ms.Cook’s negative put down of the first commenter by “not giving credence,” who are you to demean any voter’s concerns? Every voter in this town has a right to express their own opinion on the matter without outright dismissal from you. This goes right to the heart of the matter of unwillingness to listen to others. The Articles are a flawed mess. They are ill conceived. This is why they overwhelmingly did not pass. Thank goodness the voters were paying attention at Town Meeting.

The entire concept runs contrary to published guidance on Advisory’s own website as pointed out in the above article and comments. The Town did not pass Articles 32 and 33 for simple reasons, starting with the expert guidance on INDEPENDENCE provided to ALL cities and towns in the Mass Municipal Association Handbook (link above). The voters have spoken. And the above commenter is spot on: “Without even getting into the legalities, there is NO NEED for joint membership.” As pointed out at Town Meeting, all boards and committees are expected to work cooperatively. That’s how it works. With today’s technology, there are numerous options for enhanced communications as pointed out above.

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