Barnstable County Charter Review Committee
January 27, 2010
Committee members present: Fred Gaechter, Chair; Charlotte Striebel; Teresa Martin; Mike Corgan; Sheila Lyons; Leo Cakounes; and Greg Milne
Absent: Ronald Bergstrom and Ed Larkin
Others present: County Commissioner William Doherty; Diane C Thompson, Clerk of the Assembly; and Jennie Morey, Assistant to Assembly Clerk.
Chair Gaechter opened the meeting at 4:00 p.m.
Chair Gaechter asked for the approval of the agenda, it was moved and seconded with all in favor.
Chair Gaechter asked for the approval of the minutes of January 13th but even though there was a quorum to meet, two members of the Committee had to abstain because of their absence at that meeting. Therefore, the approval of the minutes was postponed to the next meeting on February 10th.
The Committee discussed the second letter drafted for County Counsel regarding the questions shown on the Major Issues Chart prepared by the committee. Ms. Thompson highlighted areas in the letter that needed further explanation. The draft letter to County Counsel is attached and considered a part of the minutes.
Chair Gaechter said on item number 2 he would like it explained further on eminent domain
Chair Gaechter said where it is highlighted with a question about what is meant to explore taxation, he believes the committee would like to know what are the powers and limitations of the County on taxation noted in Section 1-6 (d) of the Charter.
Ms. Thompson said she could provide the committee with information about the County’s taxation powers and limitations. She said she would prepare the outline then ask the County Administrator to confirm her findings.
Commissioner Doherty pointed out that the MGL define the County’s ability to tax.
Ms. Thompson agreed but added that Barnstable County by special legislation has also been given added revenue streams through taxation.
The Committee moved on to item number 3 in the letter questioning the language in Eligibility and asked that County Counsel look at Section 2-6. This question needs to be clarified.
Chair Gaechter stated that the question is related to members of the County not being able to be employees of the County. Is it illegal for a County employee to be a member of the Assembly of Delegates and should that language be included in Section 2-1 (b)?
Mr. Milne stated that it is not a matter of being legal or illegal. If the Charter was silent it would become legal but the Charter has it as law. In a Town when you review the Charter you have to send your recommendations for any changes to the Attorney General.
Chair Gaechter suggested the question to County Counsel be “Can you change the Charter to allow for County employees to serve as a member of the Assembly of Delegates? Is it legal for existing Assembly members to be employed by towns?
Mr. Milne asked could the Charter prohibit full time or part time town employees from serving as a member of the Assembly of Delegates. He thought this should also be a part of the question to County Counsel.
Charlotte Striebel said she was a Selectman in the town of Yarmouth for many years and served on the Assembly.
Mr. Milne said the question could be about non-special town employees. That would exclude Selectmen.
Commissioner Doherty said he is a part time employee for the Town of Harwich. He also noted the employment of Delegate Lynch in the Town of Barnstable.
Delegate Martin stated that there is a small population base in Barnstable County that is mostly made up of retirees. She asked how restrictive do you want the base of available people to be. The reality of where we live is that if you make certain restrictions you end up with limitations that will produce a small base to choose members.
Delegate Cakounes asked what is the question in item 5. The language for elections for Delegates is different than that for Regional Commissioners.
Mr. Milne stated that the Charter says there is an exemption for the legislative branch that is forced on the executive branch in certain elections. Is the County bound to this or can we take the State rules out for the County Commissioners.
Clarification is needed on item number 7 regarding the Advisory Board of County Expenditures (ABCE) with the duties assumed by the Assembly of Delegates. The change was a result of the lack of participation of ABCE members but was the change legal?
More information was needed on item number 10 which asks if Section 2-11 is legal. The committee noted that the process with regards to excessive absence could exclude the Delegate who has been absent. Is it due process when there is the possibility that the Delegate could be excluded?
Delegate Striebel stated that when there was a problem in the past the Assembly of Delegates did try to get in touch with the Delegate as to why he/she is not attending. On the rare occasion that this has occurred the problem of lack of attendance has been resolved and it included the Delegate in question.
Ms. Thompson agreed and said the Assembly office called the Delegate, sent information via regular mail and email, and when there still was no response, began sending certified mail. Numerous attempts were made to contact the person.
Delegate Cakounes questioned the legality of being able to remove an elective official from office. The elected official (Delegate) is representing their town and if they miss meetings of the Assembly, is it the duty of the town to decide whether they are replaced or not? Why do the Selectmen have that decision? He suggested that there must be a process to follow to make this legal.
Ms. Thompson asked if the question should be “Is it legal to remove an elected official and if so is there a process allowed which meets the law?”
Mr. Milne asked if reference to Commissioner Doherty in item number 11 could be removed as the questions are coming from the committee as a whole. There is no specific reference as to who asked the previous questions. The Committee agreed to remove the Commissioner’s name from the question.
It was agreed that Ms. Thompson would make the changes to the letter and email them to Chair Gaechter for approval. The revised letter would then be sent to County Counsel.
Delegate Cakounes made a motion to give Chair Gaechter authority to approve the letter when revised. Delegate Martin seconded the motion, and all voted in favor.
Chair Gaechter asked the committee to look at the timeline the Committee it received on October 28th, which gives a breakdown of when the Committee needs to report back to the Assembly of Delegates with their recommendations. It explains the procedures and dates for both the Committee and the Assembly of Delegates.
Ms. Thompson explained the timeline and gave more details. She pointed out the limited amount of time presently available for the Committee to complete their task. The Assembly of Delegates needs to review the Charter Committee recommendations, approve or disapprove them, and has to take action more than 150 days prior to the election if any recommendations are to go to a vote.
Ms. Thompson said that looking at the requirement that the Assembly must vote on any changes at least 150 days prior to the election means that it should receive recommendations in early April. Every recommendation by the Charter Review Committee has to be voted on by the Assembly of Delegates. The Assembly will receive the recommendations in the form of a proposed ordinance. Recommendations are either voted up or down or may be amended. The Assembly has to vote on each issue. The Assembly can add issues.
Commissioner Lyons stated that there should be a public process. She asked if there is a public process before the Assembly of Delegates votes.
Ms. Thompson stated that there will be a public hearing on the proposed ordinance. This is the normal procedure for all ordinances proposed.
Commissioner Lyons suggested that if the Committee has changes it should try to use the month of April to schedule meetings with the public to ask for their input. The committee could then make more changes according to public input and present the recommendations to the Assembly.
Delegate Cakounces mentioned that Speaker Bergstrom wants to make motions on the major changes because the Committee does need move along with their recommendations. He said it is going to be tough to do what Commissioner Lyons has suggested. The Committee has limited time.
Mr. Milne pointed out that if you follow the schedule there is no time to include meetings with the public as suggested by Commissioner Lyons. The Committee has only had discussions on issues with no formal votes.
Chair Gaechter stated that the second part of the agenda was for more focus of the Committee. The Committee started to rewrite the Charter. This cannot be done in 8 weeks. He suggested they look at certain major issues.
Mr. Corgan made a motion to recommend that the Personnel rules be removed from the Charter and that the rule be moved into an existing administrative document. This section needs to go into County Administration.
Mr. Milne seconded the motion, and all voted in favor.
Mr. Corgan stated that he would take on the task of making changes to remove ambiguity from the Charter. The wording of the Charter needs to be corrected in many areas.
Chair Gaechter suggested that the Committee could recommend that after the Assembly of Delegates approves or disapproves the recommendations, the Committee could continue to make ambiguity changes to the Charter.
Mr. Milne said the Committee could hire a consultant to work on cleaning up the document. The Town of Barnstable has done this with their Charter.
Delegate Striebel made a motion that the Committee recommend, as recommended by the previous Charter Review Committee, the creation of a Standing Committee on Charter Review so that there is an ongoing review of the Charter. The previous Charter Review’s list of recommendations is attached and considered a part of the minutes.
Mr. Corgan seconded the motion.
Members of the Committee asked if this would include Ordinance review. Will there still be a 5 year Charter Review Committee and could the review start at an earlier time?
The answer was that ordinances are included in the Charter Review, and there would still be a 5 year review that could start earlier.
The committee discussed the explanation that accompanied the previous Charter Review Committee’s recommendation and noted that it would make its own recommendation at a later date.
Chair Gaechter said he was concerned about the make-up of the Charter Review Committee. He thought the majority of members should be people from the towns and not members of the Assembly of Delegates and County Commissioners.
Committee members discussed the membership of the newly recommended committee and thought that the people working with the Charter and Ordinances regularly should be on this committee with some local representation. The Committee agreed to take up Chair Gaechter’s concern about the membership of the Charter Review Committee when it got to that section.
After discussion took place on the motion, all voted in favor.
Delegate Striebel made a motion to adopt the third recommendation made by the previous Charter Review Committee to maintain the current structure of County Government, that being 15 Assembly Delegates representing their respective towns with a weighted vote and three County Commissioners.
The motion was seconded by Delegate Martin.
Commissioner Lyons said if the County is going to maintain its structure the County should look at its purpose. How does the structure best serve its purpose in partnership with the towns? Major issues that need to be addressed regionally, such as wastewater, zoning and other regional issues, are coming from the towns and more and more towns are looking to the County for help. The County should be able to help. The County has to look down the road and envision the structure of government so that it can help towns.
Delegate Striebel questioned Commissioner Lyons concern about her concern about the structure. She referred the Committee to previous findings and recommendations by previous Charter Review Committees. This has been studied extensively. She said that the Charter provides for the County helping towns and it currently does so in numerous ways.
Delegate Cakounes asked that the original motion to leave the County with 15 Delegates, 3 County Commissioners, and the weighted vote be discussed separately. He suggested the motions be as follows: Should the Committee recommend the deletion of the Assembly of Delegates, should the Committee get rid of the weighted vote, and should the Committee increase the County Commissioners to 5?
Delegate Striebel amended her motion so that it is to retain the Assembly of Delegates with 15 representatives as stated based on the U. S. Census.
Delegate Martin seconded the motion.
Commissioner Lyons stated that there is no problem with the Assembly of Delegates created to have representation. Presently taxation is not being truly represented by Towns. People are taxed and represented by population through Congress but taxes do not even out by population.
Commissioner Lyons stated that the County shouldn’t be defining a regional government by town boundaries.
Chair Gaechter compared representation in Congress and the State. The County Commissioners could be changed to get representation there; get representation by the population. If the Assembly of Delegates is based on 1 town 1 non-weighted vote you would be looking for a Board of Regional Commissioners that would represent the population.
Mr. Milne asked if in doing so is it illegal.
Ms. Thompson noted you would be taking away the 1-man 1-vote representation from the legislature and giving it to the executive branch.
The Committee discussed electing Commissioners by region, using as an example the districts of our State Representatives.
Mr. Milne thought it would be an easier means to have the 1-man 1-vote by having 5 County Commissioners. Then you could get rid of the weighted vote of the Assembly. There would be 1 County Commissioner for each district and you could achieve the goal of 1 man 1 vote to be synonymous with the districts.
Chair Gaechter asked if the suggestion is to have 15 representatives for each town for the Assembly of Delegates, no weighted vote, and 7 County Commissioners with 5 representatives by district and 2 at large.
Commissioner Lyons stated that if you have 7 County Commissioners then could you get rid of the Assembly of Delegates. The Board of Selectmen’s votes are balanced because of their form of representation.
She noted that previous Charter Reviews looked at regional Commissioners and/or regional Delegates. At that time people from the lower Cape expressed concerns about not having one person representing their smaller towns.
Mr. Milne stated that by establishing the Assembly and Commissioners by district this is a way to get rid of the weighted vote. The Committee was told about other areas in Massachusetts that have different forms of representation.
Chair Gaechter stated that the Committee should ask County Counsel if the County could organize the regional government with 15 Assembly Delegates, no weighted vote, and 5 County Commissioners elected by district, using the State Representatives’ districts on the Cape as an example. The committee noted that Representative Madden represents only a portion of Falmouth and then the Islands.
Ms. Thompson said she will draft the question for County Counsel. She stated that she will put this question before County Counsel in a separate letter asking that he give his response on this high priority.
Delegate Striebel withdrew her motion until the Committee receives a response from County Counsel. Delegate Martin also withdrew their second to the motion.
Chair Gaechter said he would like to continue defining the comparative responsibilities of the executive and legislative bodies. Define responsibilities of these 2 bodies by checks and balances and be clear on their powers. The previous proposal may be less fair under this newly suggested structure.
Chair Gaechter noted that the next meeting of the Charter Review Committee is on February 10th. The Cape Cod Business Roundtable and the Cape Cod Chamber of Commerce will be present.
The Committee will complete their agenda depending upon receipt of responses from County Counsel.
Mr. Milne told the Committee mentioned their upcoming meeting with the Cape Cod Selectmen’s Association on February 12th. The Association asked that the Committee have a bullet presentation or outline of what process and discussions have taken place by the Committee. It was also pointed out that there will be a quorum at this meeting. The Association meeting will need to be posted.
Delegate Cakounes stated that the only outline would be based on the approved Minutes. There have been no votes there have only been roundtable discussions. He suggested that the Committee only turn over motions voted on today and the approved minutes.
Chair Gaechter suggested using the Major Issues Chart and only give the basic issues. He will create an outline and attach the Major Issues Chart.
It was noted that Mr. Corgan will not be at the next meeting as well as Mr. Larkin.
The Committee voted with all in favor to have Chair Gaechter put together the outline for the Cape Cod Selectmen’s Association.
The meeting adjourned at 5:35 p.m.
At the Committee meeting on February 24, 2010 these minutes were approved with all in favor.
CAPE COD REGIONAL GOVERNMENT
Charter Review Committee
First District Courthouse – Route 6A
Barnstable, Massachusetts 02630
(508) 375-6761/6762 Fax: (508) 362-6530 E-Mail: email@example.com
Fred Gaechter, Chair (Truro) Edward Larkin (Mashpee)
Charlotte Striebel, Vice Chair (Yarmouth) Sheila Lyons, County Commissioner (Wellfleet)
Ronald Bergstrom, Speaker (Chatham) Teresa Martin (Eastham)
Leo Cakounes (Harwich) J. Gregory Milne (Barnstable)
Michael Corgan (Falmouth)
DRAFT January 28, 2010
Robert Troy, Esquire
Troy Wall Associates
90 Route 6A
Bourne, MA 02563
Re: Barnstable County Charter Review
Dear Attorney Troy:
The Cape Cod Regional Government’s Charter Review Committee has been going through the Charter and compiling questions. In addition to the inquiries contained in the letter dated January 19, 2010, the committee requests your legal opinion on the following questions.
- Section 1-5, paragraph 2. How should this paragraph be interpreted? The committee questioned if the requirement in the paragraph is legal.
- Section 1-6 (d). What are the legal rights and procedures of the County to exercise eminent domain?
- 3. Section 2-1 (b). The committee questioned the language in Eligibility and asked that you review the language in Section 2-6. Is it illegal for a County employee to be a member of the Assembly of Delegates? If so, it is suggested that it should be stated in Section 2-1 (b). Section 2-6 prohibits a Delegate from becoming an employee for one year after a person is no longer a Delegate. Could the committee recommend that the Charter be changed to allow that employees could serve as Delegates on the Assembly? Could the Charter prohibit a non special town employee from serving as a Delegate on the Assembly?
- Section 2-1 (c). Could the committee recommend staggered terms and term limits for the Delegates?
- 5. Section 2-1 (c). The language for elections for Delegates is different than that for Regional Commissioners in that it does not reference partisan/primary elections, Section 158 of Chapter 54, MGL (see section 3-1 (a)). Is there a reason why it is included in the County Commissioners’ elections but not the Assembly of Delegates? Could the language referring to partisan/primary elections be removed from the Regional Commissioners section of the Charter?
- Section 2-3. The committee questioned the Assembly’s ability to establish its own salary and asks what might happen with staggered terms? How would the salary then be established so that a Delegate would not be voting on its own salary increase?
- Section 2-4. The Assembly of Delegates, as a result of 2000 Charter changes, began serving as the Advisory Board on County Expenditures (ABCE). Is there a conflict asking the Assembly of Delegates to serve in this capacity?
- Section 2-5 (iv). This states that “every” matter which comes before the Assembly of Delegates shall be put to a vote. The committee asks for language clarification focusing on the word every. The committee discussed the executive session option for the Assembly of Delegates, and asked if this should be noted in the Charter.
- 9. Section 2-11. The process in this section could potentially exclude the Delegate in question. The committee asks if this is due process. Also, is it legal to remove an elected official from office? If there is a process allowed, does the established process meet the requirements of the law?
10. Under Article 5, Fiscal Procedures, it was suggested that the Regional Commissioners be given the ability to have a line item veto on the budget. Could the Charter be changed to accommodate this suggestion?
Thank you for your assistance.
Fred Gaechter, Chairman
cc: Mark Zielinski, County Administrator
Timeline (to be confirmed by County Counsel):
April 7, 2010(?) - Proposed ordinance submitted to Assembly in 2010 to meet the following deadlines. (This date to be finally determined by the Speaker.)
June 2, 2010 - Assembly of Delegates must vote on Charter Changes
(this is the last meeting of the Assembly where the “more than 150 days” requirement can be met – see #2 below.)
Prior to August 4, 2010 - Notify State and provide ballot question
(First Wednesday in August)
November 2, 2010 – State Election
Charter Changes that affect Timeline:
Section 9 – 1. Charter Changes
1) `Charter changes require a 2/3rds vote of its full membership prior to submitting amendments to the voters.
2) The vote of the Assembly of Delegates must take place more than 150 days prior to the state election.
3) Changes to government structure require an act of the legislature prior to being submitted to the voters.
“Any amendment which is related to the composition, mode of election or term of office of the legislative body or the mode of election or appointment or term of office of the chief executive or administrative officer shall be proposed to the voters only after the enactment of the state legislature of a special law approving of a petition filed by the assembly of delegates with the approval of the Board of regional commissioners.”
4) Notification to state and ballot question provided no later than the 1st Wednesday in August.
Whenever, pursuant to the provisions of this section relating to charter amendments, the Assembly of Delegates intends that question is to appear on the state election ballot, the county clerk shall at the earliest possible date, but not later than the first Wednesday in August in an even numbered year, notify the office of the secretary of the commonwealth of the pendency of such question, or questions, and the form in which such question or questions are to appear on such ballots.
Barnstable County Charter Governance Subcommittee
1) The first recommendation is that the Assembly and Commissioners create a Standing Committee on County Governance. It is suggested that the committee be compromised of 3 members of the Assembly, 1 Commissioner, and 2 outside representatives. The 3 Assembly members and 2 outside representatives will be assigned by the Speaker of the Assembly. The Commissioners will assign 1 to the Committee.
The Committee’s ongoing charge will be to review enabling Acts to include, but not be limited to, Barnstable County Government and the Cape Cod Commission. The goal will be to assure that both entities are structured in a manner that best enables County Government functional excellence in providing for the services and needs of the region as intended by the originators or as subsequently modified. Further, the committee will seek to simplify, clarify, and minimize, if not eliminate, any confusion over the intent or interpretation of reviewed documents.
The review of the County Government charter will encourage and result in an ongoing presentation of proposals to the Assembly and Commissioners in “bite size” pieces in a 5-year cycle. Each cycle will culminate in the consolidation and review of the approved parts as meeting the 5-year review mandate.
The review of the Cape Cod Commission Act will assure that the structure of the Commission and its relationship to Barnstable County Government is properly structured and aligned to meet the challenges of the region that fall within the Commission’s jurisdiction.
2) The second recommendation is for legal counsel to draft text that clarifies the budget process in a manner more consistent with the processing of other ordinances. Essentially, this proposal is meant to address a situation where a budget ordinance is passed by the Assembly and vetoed by the Commissioners, resulting in an unsuccessful override attempt by the Assembly. Under this recommendation, that ordinance would fail. In this case, a Conference Committee will be established (whose composition is yet to be determined) to review and form consensus on a new budget ordinance. The Governance Subcommittee felt that this process was the fairest way to resolve differences and would also replace the need for a “line item veto”, which was also duly considered and discussed.
3) The third recommendation is to maintain the current structure of County Government, that being 15 Assembly Delegates representing their respective towns with a weighted vote and three County Commissioners.