In an occasionally heated 4-hour meeting tonight, the Portsmouth Town Council discovered that that because of a problem with the language of the state law, they could exceed the S3050 tax cap with a simple majority. And they did, provisionally voting 4-3 to exceed the cap by $568,746, restoring half the funding cut from the schools.

While this might sound like good news, remember that this is just a provisional budget, that the Superintendent was not certain even a cut of this size was manageable, and the Council has two more opportunities (the public hearing and the adoption of the ordinance) to change their mind.

I'm not actually certain that everyone on the Council acknowledged and agrees that they voted to exceed the cap. It was that kind of meeting.

Will write up the rest tomorrow, but here's the nut of the legal argument, which was pronounced sound by the Town Solicitor and, according to finance director Dave Faucher, by the Dept. of Revenue.

If you read the statute as enacted, you'll notice that it states plainly that the supermajority specifically applies to subsection (a):

§ 44-5-2 (e) Any levy pursuant to subsection (d) of this section in excess of the percentage increase specified in subsection (a) of this section shall be approved by the affirmative vote of at least four-fifths (4/5) of the full membership of the governing body of the city or town or in the case of a city or town having a financial town meeting, the majority of the electors present and voting at the town financial meeting shall also approve the excess levy.

Subsection (a) defines legal increases in the levy for all years "(a) Through
and including its fiscal year 2007." In the actual text of the law, maximum
increases for the years 2008-2013 are contained in subsection (b).

So, technically, according to the principles of "statutory construction," you have to read the law as not requiring a supermajority after 2007. I'd like to thank former Town Councilor Len Katzman for pointing this out and explaining it to me.

I did some research on the general assembly bill history site, and it appears that the line in question was inserted in markup -- see line 3-9 in the original bill.

It appears legislators were removing a reference to a specific value (5.5%) and they seem to have overlooked the reference to section a, which in *this* version still contained the text prescribing maximums for all years.

However, in the sub-a version of the bill which proceeded to the floor and which was subsequently enacted, the years 2008-2013 have been broken out and moved to section b, but nobody appears to have cross-checked for the later reference. So while people assumed that the law required a supermajority, that's just NOT WHAT THE WORDS SAY, Larry.

So hey, any other towns out there need to exceed the cap but only have four votes? Enjoy.

Update: Minor change to language to sharpen the point of the argument.