Dems hold Portsmouth; PCC fails to garner mandate

The true majority has spoken, and Portsmouth made a balanced decision yesterday, keeping a Democratic majority and adding one Republican each to the School Committee and Town Council. In a race that was run largely on the Tent Meeting ("We won't walk out on you" was the Republicans' campaign slogan) this clearly sends a message. "Reality-based" trumps ideology.

Unofficial results (with all precincts and mail ballots now counted) put the Council at 5 Dem 2 Republican and 1 Independent. The School Committee picked up 1 new R, but in a significant message, Richard Carpender, chair of the Finance subcommittee and visible face of the budget process, was returned to office.

Visit the RI Board of Elections for the details.

Oh, and the Democrats took the House, and maybe the Senate.

It sucks to be Chafee. I genuinely feel sorry about that.

Down to the wire -- Chafee tracking via Pollster

Don't know if there are any polls coming out this weekend, but the story this chart tells is already pretty interesting.

Chafee Polls final

[Note: Live chart replaced with static graphic 11/8. No need for updates.]

PCC turns its back on budget reality -- letter to Sakonnet Times

Until Monday, October 30, Portsmouth could have been forgiven for underestimating the PCC. That's the point where they turned their backs on reality-based accounting, lawyered up, and went looking for people to sue.

The facts about the schools' financial condition became clear Friday, 10/27, at a joint workshop with the Council and the School Committee. Based on analysis by independent auditors B&E, the Tent Meeting budget underfunded operation of the schools by $770,167. If no action is taken, Portsmouth will be running a system in violation of state law by the end of the year.

The B&E accountant cautioned against jumping to an adversarial Caruolo action. "Caruolo," he said, "is not a prudent budget." In an adversarial action, the judge only looks to get the schools legal for this fiscal year; any cash reserves and warrant items would get eaten up with no thought of the future. With the coming RI state tax caps, said B&E, this would only exacerbate the situation next year.

The non-adversarial option, a stipulated agreement where the Council and the School Committee go to a judge with a modified budget, seems the rational approach. But the PCC moved to block that.

At the workshop, their attorney advanced the theory that since the Council could not change the budget post-Tent -meeting, they were technically unable to deny the School Committee's request for additional funding. Since that 'no' vote is required by Caruolo, no action -- or stipulated agreement -- would be available.

Advocating such a position, in and of itself, is not problematic. Everyone has the right to vigorous representation, and you have to respect the process. But at Monday's meeting, the town solicitor announced that the PCC had sent a letter threatening the Town Council -- and the members individually -- with legal action if they took _any_ vote on the school's request.

To their credit, the Council ignored the threat, on advice of counsel, and voted to deny additional funding, clearing the way for the school to pursue alternatives.

We all want to pay lower taxes. We might look at the B&E report and suspect additional efficiencies could be wrung out of the system. If we are of a paranoid disposition, we might even want another audit to confirm the precise numbers.

But when a professional auditor -- who can lose their license if they lie on the stand -- tells you that the budget is $700K short, a reasonable person will accept that the cuts were too deep. There were proposals at the Tent Meeting that would have put the budget in the ballpark. But Larry Fitzmorris, head of the PCC, said at the Friday workshop that the tent meeting was "not the place to compromise."

No compromise, no acknowledgment that this is a crisis of the PCC's making, and now, threats to sue our elected officials collectively and individually. Threats, by the way, which the town solicitor characterized as "outrageous and irresponsible," and possible grounds for a response in the form of legal action for a frivolous lawsuit.

All you PCC supporters -- is this really what you signed on for?

John G. McDaid
Portsmouth

[Ran in today's edition. No online link available yet.]

RJ Eskow on Lincoln Chafee

Last week, I blogged a piece by Steve Clemons supporting Linc Chafee; today, another commentator at the Huffington Post weighs in on the other side, arguing not so much against Chafee, but rather his role as an "enabler" of the Republican agenda. It really makes me angry to be put in a position where I feel I need to vote against someone who's been doing good work for Rhode Island, but that's where I am. In any other year, I would be voting for Chafee, because I believe measurable performance, philosophy, and character count more than party. But this year that's not possible, for the reasons Eskow articulates. Follow the link to read the full piece, but here's the nut:

Here's the bottom line in this election. The Republican Party has been hijacked by extremists and corrupt politicians, and there isn't a Republican Senatorial candidate out there who won't assist them in their orgy of greed and radicalism when it matters most: in determining who controls the United States Senate.

and

MODERATES, TAKE NOTE: The most unequivocally bipartisan issue in Washington today is veteran's rights, and the Iraq and Afghanistan Veterans' Association has created a handy interactive guide to politicians' records on this issue. (Highly recommended.) Chafee only scores a "C," while his Democratic fellow Senator Jack Reed rates an "A-." That's food for thought for moderate Rhode Island voters. -- RJ Eskow: True Moderation: Why Lincoln Chafee Must Be Defeated

Text of PCC letter to Portsmouth Town Solicitor

Just thought it would be useful to have the letter discussed by the Town Council at Monday Night's meeting. Since this was discussed in open session, I obtained a copy from the Portsmouth Town Clerk pursuant to the state's Open Meetings law.

[BEGIN TEXT]

To: Attorney Kevin Gavin
Solicitor
Town of Portsmouth, Rhode Island
cc: Portsmouth Concerned Citizens
October 29, 2006

INTRODUCTION

As you know, I've been engaged by Portsmouth Concerned Citizens ("PCC") vis-a-vis contemplated extra-budgeted appropriations by the Portsmouth Town COuncil responsive to a threatened lawsuit by the Portsmouth School Committee under the so-called "Caruolo Act," R.I.G.L. 16-2-21.4.

Normally under circumstances under which litigation is threatened I would not offer to share with prospective opposing counsel what is, in effect, my theory of the case. However, such and offer was intentionally made at the October 27, 2006 Town Council meeting, for it is PCC's desire that, for the good of everyone in Portsmouth, litigation be avoided if at all possible. And so, in accordance with our brief telephone conversation of last evening, I am providing you with the summary of the legal bases underlying my professional opinion that: 1) the Portsmouth Town Council cannot legally appropriate additional monies to the school budget in excess of that approprated and approved at the so-called "Tent Meeting," and 2) that the Portsmouth School Committee cannot successfully maintain a so-called "Caruolo Act" lawsuit...and so the Town (acting through the Town Council) ultimately need not concern itself with the threat of such a suit.

Finally, I will briefly describe the measures that the PCC is preparing to take if it becomes necessary to enforce the provisions of the Portsmouth Home Rule Charter ("Town Charter") and applicable state law. This is intended not as a threat, but as a word to the wise.

Though PCC is in the process of collecting money to fund such measures, it is hoped that through your independent analysis of what is to follow you will conclude, as I have, that any attempt(s) by the Town Council to appropriate additional funds to the school budget (no matter how characterized or labeled, and whether external to or under cover of a "Caruolo Act" lawsuit) would be subject to recission in court, and thus would be futile, resulting only in the expenditure of unnecessary legal fees by the Town -- and thuse that you may advise the Town Council not to venture down that path, and they will decide to follow your advice.

That said, you will of course make your own independent professional judgement regarding the following, and render such opinion and advice to the Town Council as you deem appropriate. Whatever that advice turns out to be, by way of this document PCC wanted to extend a gesture of courtesy and good will, so that no matter what course the Town Council chooses, it will do so in a fully informed manner and foreknowledge of the potential ramifications of its decision(s).

TOWN CHARTER

As you know, the current Town Charter, Article II, Section 207, describes the enumerated powers of the town council. The initial paragraph of section 207 declares that the powers of the council are "to be exercised in accordance with relevant provisions of the Charter and of the Constitution and laws of this state." Subparagraph (h) authorizes the Council to raise taxes necessary "to implement the adopted budget." [Emphasis added.]

Article II, Section 208, Paragraph 6 provides that "[w]iwthin two weeks of the adoption of the final Town Budget, a Town Meeting of the duly qualified electors is of the Town may be called by petition...the purpose of said Town Meeting shall be limited to a reconsideration of the final budget of the Town as adopted by the Town Council and said Town Meeting may increase or decrease the total amount of either the School Department Budget or the Town Budget, or both." [Emphasis added.]

Any fair reading of the Town Charter conducted in conformance with accepted rules of statutory and/or contractual interpretation leads one to conclude that he overall budget appropriations approved at a so-called "Tent Meeting" are the final and mandatory appropriations. The Town Charter provides no provisions for supplemental appropriations, emergency appropriations or any other mechanism by which the Town Council can alter the total amount of the approved budgets. The only related power remaining to the Town Council is that described in Article II, Section 207, paragraph (i):"[t]o transfer appropriations within the Town budget (exclusive of the school Department budget) not to exceed the total appropriated" [Emphasis added.]

[...
EDITOR'S NOTE: FIVE PARAGRAPHS, QUOTING A FORMER TOWN SOLICITOR'S OPINION ON A PRIOR TOWN CHARTER OMITTED
...]]

To the extent that the Town Council has made any extr-budgeted supplemental or emergency appropriations under the current Town Charter, it is submitted that such were ultra vires -- performed without requisite authority and in violation of the Town Charter -- and so survived not because they were properly made, but only because they went unchallenged...a circumstance that should not be assumed in the future.

CARUOLO ACT

As you know, as a general rule the provisions or requirements of a Rhode Island statute trump contradictory provisions of a municipal charter. However, in this instance the unambiguous language of the so-called "Caruolo Act" subordinates itself to the requirements of the relevant municipal charters, and thus is an exception to the general rule.

In turn that subordination, coupled with the interplay between the "Caruolo Act" language and the provisions of the Portsmouth Town Charter, lead to an inescapable conclusion that the Portsmouth School Committe cannot adhere to the procedural prerequisites that the statute mandates for initiating a so-called "Caruolo suit" .. and thus cannot prosecute one.

Thus, from a leagl standpoint, the Portsmouth School Committee's assertions) that it would initiate a "Caruolo suit" are effectively bluster, and the Town Council need not concern itself with attempting to appropriate monies in an attempt to avoid a "Caruolo suit," much less the litigation expenses that would be attendant thereto.

The text of the "Caruolo Act" is reproduced below, but particular attention should be paid to the following sentence of paragraph (a): "[t]he decsions to increase any appropriations shall be conducted pursuant to the local charter or public law controlling the approval appropriations within the municipality." [Emphasis added.] As discussed above, under the Portsmouth Town Charter, once a fiscal year budget appropriation has been made there is no provision for the School Deparment, any other department, or even the Town Council to request an increase in the approved budget. Therefore, under the Town Charter the School Committee cannot request an increase, a prerequisite step required by the "Caruolo Act."

Further, Paragraph (b) of the "Caruolo Act" states that: <"[I]n the event of a negative vote by the appropriating authority, the school committee shall have the right to seek additional appropriations by bringing an action in Superior Court..." [Emphasis added.] Because the Portsmouth Town Council cannot conduct such a "vote" -- negative or otherwise -- and the "Caruolo Act" requires a "negative vote" as a prerequisite procedural step, under the unambiguous language of the "Caruolo Act" itself a "Caruolo suit" cannot be initiated...and should the School Committee so attempt, it would be subject to dismissal by motion.

POTENTIAL RECOURSE FOR PCC/INDIVIDUAL CITIZEN(S)

For the foregoing reasons, it is submitted that should the Portsmouth Town Council attempt to increase the School Department's budget as approved by the "Tent Meeting," it woudl be acting ultra vires. This is true whether by a supplemental appropriation, a transfer of "warrant" monies or any other euphemism that would have the effect of increasing the School Department budget.

This truth remains whether the attempt is made to "avoid" a "Caruolo suit" or as part of an "agreed" settlement to a "Caruolo suit" (Whether as part of a "pre-packaged" suit in which the Town and School Committee agree in advance regarding a figure to presented to a judget, or a "settlement figure" agreed to after suit is initiated).

In turn, should such ultra vires attempt(s) be made, PCC is firm that it will pursue all appropriate legal avenues to enforce the Town Charter and applicable law. This could include, e.g. a writ of mandamus seeking court-ordered enforcement of the Town Charter, along with such other avenues or "pleading in the alternative" as appear legally sound based upon the facts then before us.

Additionally, I would feel professionally obligated to research the legal viability of naming each member of the Town Council as defendents not just in their official capacities, but also as individuals (e.g., on a theory of "reckless" or "intentional disregard" for their legal authority or lack thereof under the Town Charter).

It is hoped that the Town Council undertakes a thorough review, including consultation with you, of its authority and obligations under the Town Charter, and thereafter conducts itself accordingly. It is not the desire of PCC that any litigation of any form -- or initiated by any party -- arises from the current and pending deliberations.

It is merely PCC's desire that the Town Charter be adhered to -- I believe that few would argue with that sentiment.

Sincerely,
[signed]
Thomas C. Wigand

[END TEXT]

Resources:
"Caruolo" Act (RIGL 16-2-21.4)
Portsmouth Town Charter
Wigand Associates PCC lawyer

PCC threatens Portsmouth, council members with lawsuit

The other shoe dropped tonight as the Town Council described a letter from the PCC threatening to sue them -- collectively and personally -- if they took any action on the School Committee's request for additional funding. Without a Town Council response, there would be no recourse to a Carulo action (as specified in RIGL 16-2-21.4(a)(1).)

The Council ignored the threat, and voted unanimously to reject the School Committee request for additional funding. "Let me be clear," said Council member Leonard Katzman, "I'm voting no to free the school committee to take further action. He went on to describe the letter as being full of "misdirection" and containing arguments "not warranted by existing law, and a frivolous extension of existing law." He pointedly said, "I am an attorney," and urged the council to consider taking legal action against the PCC and their attorney for bringing a frivolous lawsuit, should they proceed.

The Town Solicitor, Kevin Gavin, was equally straightforward. "The PCC legal position has no merit whatsoever. [It is] outrageous and irresponsible." He also recommended seeking court sanctions for a frivolous lawsuit, should it be attempted.

The Council also voted to request that the School Committee conduct a full program audit (which they acknowledged they would have to fund.) Since a program audit is technically required as a normal component of the Carulo process, this seemed more of a symbolic vote (except the part about where they were going to get the money -- probably by raiding funds already allocated to the Portsmouth wastewater management district study, which is not good news for the northern end of the town.

Asked Gavin if the PCC letter was public, given that it dealt with potential litigation, and he assured me that it was. I'll pop by Town Hall tomorrow to get a copy and post the best parts here.

Steve Clemons on Lincoln Chafee

chafee in rhode island.jpgHuffPo blogger Clemons provides a thoughtful analysis of Chafee's excellent work in the Senate, and argues persuasively for his re-election. What a bind. I really wish I could vote for him. I think he's a person of deep principle and integrity, and by god we need that in Washington. Twice in the past couple of years, I have called his office to thank him for votes, and that's more than I can say about any other Republican. (Or even, more to the point, about the Democractic congresscritter we have here. Let's remember which member of the RI delegation voted to authorize Bush's war in Iraq. Hint: it WASN'T Chafee.) But despite all the logical arguments that Clemons makes, I still don't think I could actually vote for Chafee next week, much as I want to. If only the race in the Senate weren't so close. But listen:

Chafee's confidence has grown enormously this year, and while it would have been easy for him to just stay where he had been on Bolton, he actually changed direction. Lincoln Chafee replaced Voinovich as a key no vote on Bolton -- but in contrast to Voinovich, Chafee would not vote in favor of sending Bolton's nomination to the floor of the Senate. This was an admirable stand, but more importantly, Chafee went further. Chafee then attached his opposition to Bolton to the miserable and worsening state of American foreign policy in the Middle East.

Chafee has been arguing something that others like Richard Lugar and Chuck Hagel have been lobbying for in Republcan foreign policy circles: a new push on establishing a viable, contiguous Palestinian state. This might help spark a virtuous cycle for American foreign policy in the region, rather than the deteriorating situation now.

Chafee was bold in other areas as well. He supported Chief Justice John Roberts -- which my blog, The Washington Note, did as well -- and he opposed strongly Samuel Alito, also consistent with my public position.

He worked hard in deals with the White House to maintain Rhode Island's important naval base infrastructure, which had been on the chopping block of the Base Realignment and Closure Commission. Last year, Rhode Island had the smallest number of closures in the country. Rhode Island constituents should remember that.


--Via the Huffington Post, Steve Clemons: Why I Support Lincoln Chafee's Re-Election

Portsmouth School Deficit Real; PCC lawyers up

The Portsmouth Town Council and School Committee had a workshop today with the consultants from B&E to hear their findings, and the bottom line is that the Tent Meeting budget underfunds the school system by $770, 167.

There are some potential offsets -- some Medicaid reimbursements, Little Compton tuitions, and cash balances -- which could get the number down around 450K. But no question, the Portsmouth schools do not have enough money to finish the year while meeting the requirements of law, regulation, and contract, according to the accounting expert from B&E.

Even the accountant -- Walter Edge -- cautioned against a full-on Carulo action. "Carulo is not a prudent budget," he said. "It's a what-you-need-to-finish-the-year-budget." That is, he noted, the cash reserves and a couple of warrant items currently designated for capital expenditures might get eaten up all in one year, were there an adversarial Carulo action and a judge was only required to rule on the minimum to get the schools legal for this fiscal year. With the coming RI state tax caps, said Edge, you "don't want to exacerbate" the situation next year.

So where does that leave Portsmouth? The best option, a stipulated agreement where the Town Council and the School Committee go to the judge with a modified budget seems the rational approach. But wait.

The PCC was there, and have hired a lawyer who said that Carulo does not apply in Portsmouth. Based on his reading of RIGL 16-2-21.4, which states that a necessary step in the Carulo process is a negative vote by the Town Council, he argued that since the Town Charter does not allow the Council to amend the result of a Town Meeting budget (and hence, cannot provide the negative vote for additional funding required by Carulo) that the School Committee could not proceed past that point to initiate an action.

Me, I'm no lawyer. That sounds like a really interesting theory, the kind every client is entitled to pay an attorney to come up with. I fully support the legal process, and I'm sure the PCC and their attorney are being honest and professional.

However. As I pointed out at the meeting, this report from a CPA unambiguously states that the cuts the PCC pushed through in the tent meeting were excessive. Had they been willing to compromise -- there were motions on the table that the PCC voted down that would have been in the ballpark of the cuts necessary -- the town would not be in this dilemma.

Larry Fitzmorris, head of the PCC, stated that the tent meeting was "not the place to compromise."

But according to his own attorney's interpretation of the law, since the tent meeting was the appropriate mechanism for re-setting the budget, that was PRECISELY the place to compromise. But the PCC did not. They cut so much money that Portsmouth's schools now face the threat of operating illegally, and they have hired a lawyer to keep it that way.

Pynchon fans rejoice

Against The Day It's been a long wait since Mason & Dixon, and a few head-bagged appearances on The Simpsons just don't satisfy anyone jonesing for that word-fix only a big fat Pynchon novel provides.

I was introduced to Pynchon in 8th grade by the resident genius in our school, John Hopeck. I wasn't quite ready at that point, but when I read The Crying of Lot 49 a couple of years later, I was hooked. And I mean hooked.

My 5th-printing Bantam copy of Gravity's Rainbow is always within arms reach on a shelf; covered with scribbles, bookmarked, held together with library tape. When I took a Pynchon course in grad school, I had to buy a second copy just to read it pageturningly; the first mutated into a self-referential palimpsest, encrusted and imbricated, a slow evolving process of becoming its inner meaning, like some Pynchon sentence that begins with bright, innocent simplicity and ends up dragging a constellation of laggard concepts kicking and screaming across your corpus callosum. Heh heh.

Can't wait to see what the sensei has been up to...

2800 and counting

The death toll for U.S. service members in Iraq has surpassed the casualties from the World Trade Center. If you're reading this blog, you probably don't need the dose of visceral sadness and outrage that Steve Young eloquently articulates:

"Before you can honestly understand war's demands, it is incumbent to empathize with those who have already lost, and you cannot empathize with those who have suffered by reflecting on 2800 deaths. You empathize by contemplating a single death... 2800 times.

You have to see each of the 2800, not as a number but as a real person; someone who had a history, albeit a much too short one; someone who was once an infant in the arms of a mother or a father. A mother and a father once filled with joy... hope...dreams. You have to understand that the man or woman who died was once a child playing with friends, laughing, crying, absorbing an education...working on building tomorrows. You have to place yourself inside each one of those human numbers, entering a battlefield incredibly scared, breathing heavily, gulping fear, alive, but unaware that in moments you would die. "
--Via Huffington Post

With all the talk about Vietnam comparisons -- especially Tet -- one has to ask: Where are the people in the street? By this point in the war, there was mass protest. Four months before Tet was the march on the Pentagon. 2,800 dead kids; 300,000 dead Iraqis. Where's the OUTRAGE?

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