Critics say Governance Amendment may actually be T.A. form of government

This article was written by several local attorneys, a few Cohasset citizens, and had input from two south shore town managers. It is important that the Governance committee take a new look at its draft proposal and consider the comments here-in. This is an important document. It will govern the Town of Cohasset for who knows how many years to come. What is this document the Cohasset Governance committee has pieced together? Is it a totally new constitution or is it an amendment? Our writers say it may be a Town Administrator form of government. If so, it should go to ballot.

This past week the Cohasset Governance committee posted what it termed a “working draft” for a comprehensive overhaul of the Town Manager Act. 

Because it was created following the controversy concerning appointments to the Conservation Commission in July 2011, there has been frustration that the Governance committee focused on the role of the Town Manager rather than on its initial charge that was to look into the reasons why Selectmen Paul Carlson, Lee Jenkins and Fred Koed replaced several veteran commissioners with people sympathetic to the position of the self-styled E-20 citizen’s group on Cat Dam. The posting of the working draft now makes it clear- in a sinister sense- that the future of the Conservation Commission has always been in the forefront of those on the Governance committee particularly, given the its members included Ralph Dormitzer, George Chamillard (who stepped down from the committee last summer only after a local newspaper repeatedly pointed out his conflict on serving on the Advisory committee and Governance), and Michael Milanoski who is presently the acting Town Manager, and who initially served as chairman of Governance.

Last December Special Town Meeting rejected removing language from the present act that is blocking the permanent appointment of Michael Milanoski as Town Manager; however, the Working Draft in Section 4 (b) once again includes the language that was voted down.   Under the current act, Section 3 (i) states “No person holding elective or appointive office in the Town shall within one year of holding such office be eligible to be appointed to the position of Town Manager.”  By contrast, the Working Draft in Section 4 (b) once again attempts to weaken our town’s revolving door provision to only selectmen – attempting to once again clear the way for the former Associate Conservation commissioner (Michael Milanoski) to be appointed Town Manager.  Given the vote at the Special Town Meeting in December, we suppose Dormitzer’s allies on the Governance committee are reasoning that “if you don’t succeed, you try, try again.”  While this may work in a playground sandbox, ignoring the will of the people in a constitutional republic is a dangerous concept and thus has no place in a document claiming to provide good government.

The working draft also proposes to allow the Board of Selectmen to get involved with the internal workings of all boards and commissions they appoint.  Under the present Act, Section 3 (e) limits the selectmen to “general administrative oversight of such boards, committees, positions or commissions appointed by the Board of Selectmen.”  The Working Draft Section 3 (f) would open the door for Selectmen to assert a greatly expansive and intrusive role by giving the selectmen legal oversight.  While “General administrative oversight” anticipates a limited role by the Selectmen, “oversight” would allow the Board to exercise congressional like investigatory power over our boards and commissions. This would now “legally” allow the Selectmen to get involved in regulatory matters, strategy, and the formal questioning of commissioners and their decisions.  Cloaked under a cloud of improving accountabilityGiven what happened with Cat Dam, such “oversight” does not bode well for Cohasset’s future.  In fact, in many towns, interference by Selectmen into Conservation matters has triggered costly litigation. Couple this with the fact that the Working Draft now calls for the Town Manager to appoint the Conservation Commission– this is a disaster waiting to happen. Talk about stacking a deck.

Section 9 (b) of the Working Draft states that “The Town Manager shall appoint members of the Conservation Commission under Mass GL Chapter 40 sections 8c.”  Presently,  the Board of Selectmen appoint the Conservation Commission.  Because Cohasset is presently a Town Manager form of government, this change makes sense because it supports the public charge of the Governance committee to bring our town into conformance with state law. But in reality this is a smoke screen. When the Governance committee first appeared before the Board of Selectmen last January, Dormitzer, Chamilard, Milanoski and Advisory Chair Peter Pescatore all reasoned that the existing “strong” Town Manager Act needed to be weakened to something akin to that of a Town Administrator.

Although the “Working Draft” keeps the title of Town Manager, the provisions within the draft clearly weaken the present separation of powers between a “strong town manager” and the Board of Selectmen.  While Section 3 (d) of the Working Draft continues the Board of Selectmen  “General supervision” though the town manager of all matters affecting the town, Section 3(f) now calls for the selectmen to have “oversight” as opposed to the present “general administrative oversight” over the “positions” the selectmen appoint.  Since the Town Manager is the Selectmen’s top appointment, the proposed new oversight of the Town Manager by the Selectmen arguably weakens that position – and it becomes more of  a Town Administrator.  So it begs the question (given the totality of changes proposed in the Working Draft): if passed, can a Town Manager in name only still appoint members to the Conservation commission under the law which allows him to do so? Is Cohasset maintaining the true separation of powers between and Town Manager and Board of Selectmen? We think not.

It is also interesting to compare the criteria for Conservation appointments under Section 8(b) with those that the Town Manager must apply for major department heads under Section 8 (a) of the Working Draft.  Under Section 8(a) of the Working Draft, the Town Manager must make appointments for a Police Chief, Fire Chief and Finance Director on merit and fitness alone.  Why is such language left out of appointments for Conservation commissioners under 8 (b). Is it because the vote in July 2011 by Selectmen Carlson, Jenkins and Koed to replace veteran Conservation commissioners would not stand if challenged as a decision based upon merit and fitness alone?  Moreover, what does that say about future Conservation appointments?

Besides changing the Selectmen’s role from general administrative oversight to fair ranging oversight, the working draft also makes it tougher for a Town Manager to get to the bottom of issues. Under Section 5 of the existing act, the Town Manager now has access to all documents.  If passed, the working draft Section 7 (i) limits access to non-privileged municipal books, papers and documents or information necessary for the proper performance of the duties of town manager. What is and more importantly who is going to determine what “non-privileged” documents are? Would potential conflicts of interests by town officials like a relationship with E-20 be a -non-privileged matter?   How about the corporate records of your contractions like Coughlin Environmental Services, United Water and Woodard and Curran? The proposed change is a dangerous limitation on the ability of any town manager to ask the questions that need to be asked. Is this improving accountability as claimed by the Governance committee?  Does such a limitation promote the effective/efficient use of limited taxpayer dollars as stated by the Governance Committee in their preamble and message to the citizens?

Couple this with the proposed change to give the selectmen “oversight” as opposed to their present “general administrative oversight” over the town manager will make it virtually impossible for any Town Manager to ask any questions at all without putting his/her job in jeopardy. 

To that end, the “Working Draft” also makes it easier for the Selectmen to fire a Town Manager.  Under the present act– Section 3 (J) the Selectmen must file a resolution “setting forth in detail the specific reasons for the proposed removal.” By contrast Section 5 (a) of the Working Draft waters down that protection by stating the selectmen must only set forth the reasons.  Why the change eliminating “in detail” and “specific reasons”?  Is it because the Governance committee is trying to protect the present Board of Selectmen (minus one) who might have erred and have been sued in court?  Time will only tell but it is clear that the people of Cohasset need a governance structure that seeks to eliminate controversy by improving democracy. 

The first step is for those on the Governance committee to accept the will of the people expressed last December and start anew. Wait until the DOR Financial Management Review is published. There are many good people on the Governance committee but the work is tainted because it originally formed to look into an injustice of the Conservation commission. Instead of answering the question that it was tasked to answer it has produced a blueprint for a governmental structural that will ensure that history repeats itself. 

© Copyright 2013 Tanna K, All rights Reserved. Written For: Tinytown Unleashed