There’s a game that government insiders play when they’re having trouble getting something they want from the people they’re supposed to be serving or representing. They look through the laws that prevent them from just doing whatever they want and wish those laws away.
For decades, now, one way they’ve done that wishing in Tiverton is by telling the town solicitor what they want the rules to be. He or she then goes through the law and without fail discovers that it doesn’t actually mean what everybody involved in the town had previously thought it meant. Everybody has been wrong all along!
Such is the case with a new ordinance that the “Committed to Tiverton” Town Council wants to push through in order to give themselves power over the money generated by the Twin River casino in town. In short, the proposed ordinance attempts to move the gambling revenue into a special restricted fund that is completely under the control of the council.
This isn’t a new idea; some government officials and many residents have argued for it since the casino appeared. They even put it on the ballot for a vote of the people of Tiverton, but it lost.
The problem is Section 1214 of the Tiverton Home Rule Charter, which says:
All fees, penalties, payments and miscellaneous sources of revenue including but not limited to vending machines, copy machines, and recreational activities collected by Town Officials or agencies in their official capacities shall be transmitted to the town treasury to be deposited in the general funds of the Town.
But “Aha!,” says the town solicitor. “All we have to do is say the money goes into the general fund first and then moves into the restricted fund, and we can make section 1214 completely meaningless!” There is no source of revenue that couldn’t be transformed into a slush fund for the council this way.
As it has worked to put together its budget for the upcoming year, the Tiverton Budget Committee asked Town Solicitor Michael Marcello how this could possibly be permitted under the charter. He relied on the “Aha!” argument, but he went even farther, finding another “Aha!” in state law, specifically Rhode Island General Law section 45-11-1.
This statute allows cities and towns to create reserve funds only for capital expenditures, and Marcello seizes on the first line:
The city council of any city and voters of any town in this state in a financial town meeting, or any other municipal body legally empowered to appropriate funds of a city or town, if they see fit to do so …
Why the General Assembly felt the need to pass this law in 1943 would be a subject for extensive research into old records. A search of multiple databases of judicial rulings finds no instance of the law’s having been challenged or used in any lawsuit. It’s interesting to note, however, the way it gives the power only to councils in cities, leaving it to voters in towns. As much as residents may complain about new construction, Tiverton still is a town.
The key phrase, however, is the authorization of “any other municipal body legally empowered to appropriate funds of a city or town.” This makes Marcello’s argument circular. Basically, asked how he gets around the fact that the charter makes it illegal for the council to put “miscellaneous sources of revenue” outside the reach of voters, Marcello says state law allows the council to set up this fund as long as it is legal. So, it’s not illegal because state law says it’s legal if it’s legal. Get it?
Whether a capital fund under the control of the council is the right way to handle the casino money is a question about which good, smart people can disagree. Nonetheless, voters should take some time out of their evenings on March 8 to call into the council’s special hearing for the ordinance to ask them not to take away voters’ rights like this.
A lawyer can always make an argument that the law means something it doesn’t mean (if you squint hard enough), but that’s not how elected officials should govern. If they want to change the charter, they should give it another try, not make our charter like an impressionistic painting with plenty of room for creative interpretation.
If we don’t speak up, we’re soon going to find that the Budget Committee and the FTR are really just suggestions that the members of the Town Council can ignore — whether they’re committed to Tiverton or not.