With no warning, Town Clerk Joan Chabot effectively rewrote Tiverton’s Home Rule Charter all by herself, violating the rights of electors, and Town Solicitor Michael Marcello and Superior Court Judge Brian Van Couyghen are just fine with it.
That seems like a bold statement, but it’s simply factually true. There is no other way to interpret the facts, although the reader will have to follow along to understand why.
Outline of the Facts
- As long as there has been a financial town referendum (FTR) in Tiverton, the Town Clerk had to begin accepting alternate petitions from electors of the town no later than 35 days before the FTR, and petitioners had to return enough signatures by 28 days before the FTR.
- With no other warning, on the Tuesday before the 35-day marker, Chabot asked the tax assessor, who handles updates to the town website, to put up a note that the Saturday four days later (35 days) would be the last day that petitions could be submitted.
- Early the following week, two Tiverton electors attempted to pull petitions for the FTR, and Chabot rejected them.
- After the petitioners filed an emergency order with the Superior Court in Newport, the judge insisted on Thursday that the clerk’s reading was obviously right, even though one of the petitioners was the co-chair of the committee that wrote the language and even though Chabot, herself, had submitted a petition after the 35-day mark in 2017.
Local politics aside, it’s a fascinating question how the meaning of the law could possibly do such an about-face. The application of the law has obviously changed in Tiverton. By what authority did that happen? And can the people of Tiverton ever trust that any of the laws by which we’ve agreed to live in our representative democracy actually mean what we think they mean, or is every election essentially the selection of dictators who make up the law out of nowhere?
The Language at Issue
Article III, Section 301(a) of Tiverton’s Home Rule Charter includes a step-by-step outline of the process by which the town creates and voters select a budget for the upcoming fiscal year. Step 15 applies to the Town Clerk:
Budget Proposal elector petitions made available no later than 35 days prior to the Financial Town Referendum.
Step 16 applies to the electors:
Budget and Resolution elector petitions due to the Town Clerk no later than 28 days prior to the Financial Town Referendum.
Section 301(d)(1) is more descriptive (underline added):
No later than 35 days before the Financial Town Referendum the Town Clerk shall make petition forms available which include fields for the name of the elector who is the petition originator and the ballot entry amounts of Section 301(b)1.A through E. The Town Clerk shall record the dollar amounts sought by the petition originator on the petition form, shall prepare a typed version of this petition form to be verified by the petition originator, and record a petition originator’s statement, if any, as to the purpose of the petition. The petition originator shall provide and the Town Clerk shall record either (1) the specific docket line item(s) to be increased, decreased, or created, or (2) a statement to remand the docket to the Budget Committee for final determination of docket line item(s) in accordance with said petition originator’s budget proposal. Any person obtaining signatures must be a legal resident of voting age. Petitions must be returned to the Town Clerk no later than 28 days prior to the Financial Town Referendum.
Even though the people who wrote the language say otherwise and Town Clerk Nancy Mello followed their interpretation from the very first FTR through the belated one held in late 2020, Chabot, Marcello, and Van Couyghen insist that the underlined phrase does not mean that the clerk has to start making petition forms available by that date, but rather that she must stop making them available the next day.
The Writers of the Law
A little historical perspective helps.
After an extremely contentious financial town meeting (FTM) in 2008, which some taxpayers still refer to as “the Stolen FTM,” Tiverton’s budget process was the source of massive tension. To come up with a solution, the Town Council at the time appointed a Financial Town Meeting Changes Advisory Commission (FTMCAC) to develop an alternative. That alternative, which the voters ultimately approved in November 2011, was the financial town referendum (FTR).
One of the more-complicated questions was how, exactly, ordinary townspeople could propose changes. At the FTM, anybody could get up and make a motion to change anything in the budget at all. How could we have a private-ballot referendum that allowed something similar?
As of March 2011, the FTMCAC proposal called for the Town Council to adopt a “Town Budget Report,” which would be the town’s proposed budget. Here’s the next step in the process proposed at the time:
The day following adoption of the Town Budget Report as per subsection (c) herein, the Town Clerk shall make available petition forms printed with standard language and spaces for the insertion of the required information. The content of the petition(s) shall be verified by the Town Clerk within one (1) business day of receipt before circulation. All petition forms must be returned to the Town Clerk no later than fourteen (14) days after the adoption of the Town Budget Report.
It is clear that the FTMCAC meant for “shall make available” to be the start of the elector’s process, with no deadline for when petitioners must pick them up, as long as they returned them within two weeks of their being made available.
Obviously, the FTMCAC made huge changes to its proposal by the time Tiverton voters had their say, but the meaning of “shall make available” remains the same in the final presentation of the committee. A chart of the process is clear about what must be done by whom each step of the way. The 35-day mark is noted as, “Elector Petitions for Budget Proposals made available by Town Clerk.” At 28-days, it’s, “Elector Petitions for Budgets and Resolutions due to the Town Clerk.”
What comes before is different, but the principle is the same. The clerk has to start accepting petitions in time for electors to collect signatures by their deadline, but there is no deadline for the electors to start the process, as long as they think they can return them in time.
The Long-Standing Interpretation
As noted above, that is exactly the process that Town Clerk Nancy Mello always followed. Over the years, she frequently explained that a petitioner could come to Town Hall at the very last hour on the 28th day before the FTR and pull a petition if he or she had 50 people lined up in the parking lot outside to sign the petition right away.
That remained the rule for FTR petitions right up through the belated referendum held in September 2020. At the Town Council’s August 24 meeting, Mello mentioned that “the deadline for a Petitioner budget to be submitted is Saturday August 29 at 2pm,” which was the 28th day before the FTR. (Any ambiguity in the meeting minutes is dispelled by the video of the meeting.)
Just so, on April 17, 2017, which was the Monday after the 35th day before the FTR, that year, Mello emailed me, as an interested Budget Committee member to let me know that electors, including Joan Chabot, had just pulled a petition that day.
Those were the rules.
The Sudden, Quiet Change
Fast forward to June 2021. Chabot is now the Town Clerk, and she has unilaterally changed the law. Worse, she did so without following any process or providing any conspicuous notice. On Tuesday, June 8, she sent an email to the tax assessor asking him to update the FTR page on the town’s website that twisted the charter language to impose a new deadline:
Per Section 301(a)15, the Town Clerk will have Budget Proposal elector petitions made available no later than 35 days (June 12, 2021) prior to the FTR. Last day to submit elector petitions is June 12 between 9:00 a.m. and 12:00 p.m.
Observe two things.
- First, Chabot changed the grammar by tucking the word “have” into the sentence to make it seem that the charter only allows the petitions to be out until that time. This is much different from “shall make available.”
- Second, she added the clarification that June 12 would be “the last day to submit elector petitions.” If this was just an obvious interpretation of the law and was not, as Chabot claimed in court, actually a change in policy, why would she feel the need to make that explicit? The language from the charter was supposedly clear.
When Nancy Driggs, one of the electors who attempted to submit a petition on Tuesday, who also happened to be a co-chair of the FTMCAC, asked Chabot how she was supposed to have known that the rules had changed, the Town Clerk replied that she could have called to check. But just like checking the website, why would anybody call to make sure that the law — our home rule charter — had not suddenly changed with no vote of the people?
That really is the important point, here. Changing Tiverton’s charter requires public debate and hearings by either the Town Council or a charter-change committee, followed by a vote of the people. Yet, Chabot has changed the charter with just a personal email to the tax assessor on the Tuesday before the critical date.
Superior Court Judge Brian Van Couyghen opened his hearing on the matter saying that he didn’t see the problem, because Chabot was correct about the meaning of the words, but where could that meaning possibly have come from? Can it really be the case that the people who write a law can mean one thing, which government officials implement and enforce for a decade, and then a new government official and a judge can somehow discover that it meant the opposite all along?
Whatever their feelings about the budgets on the ballot or the people involved in this controversy, the people of Tiverton should not doubt that their own rights are under threat, here. For you to have any rights at all, the law has to be consistent and predictable, and not subject to change at the whims of a newly elected clerk. (Clerks are supposed to be simply the keepers of records and handle ministerial tasks.)
Moreover, for your rights to be protected, you have to be able to rely on the Town Solicitor and court judges to stand up for due process. Unfortunately, that’s not how it works in Tiverton, at least not anymore.
The final question is why Chabot would have done this. It’s hard not to see the shadow of Council President Denise deMedeiros in the background, but as usual, she’s managed to keep her hands clean.