Please find my statement regarding the BOH decision, as well as correspondence between myself and Atty. Colognesi. Please give me a call if you have any questions or concerns.
Very truly yours,
Kirstie L. Pecci
Dear Mr. Colognesi-
As we discussed earlier today, I am trying to evaluate the legalityof the Southbridge by-law Section 3-209.1 which mandates a five-member BOH, contrary to the Section 4-3-1 of the Charter, which onlyallows a three member BOH. Kopelman & Paige's 7/21/03 opinion, andtheir more recent 6/3/08 opinion, both rely on the Town Manager'spower to "reorganize" the Town government per Section 4-5-1 of theCharter.I have attached the Reorganization Plan #1 (8/10/04) and the 6/4/08opinion letter from Kopelman & Paige (sorry - I think the pages areout of order, and when I correct them I lose parts of the text). Iunderstand that you already have a copy of the charter, the by-lawsand the 7/21/03 K&P opinion.As an attorney, and chairman of the charter commission, is it yourunderstanding that the Town Manager could increase the number ofmembers of the BOH via Section 4-5-1 or was an amendment to theCharter necessary to increase the number of BOH members? Your inputwould be greatly appreciated.Please let me know if you need any further information.
My computer died a week or so ago. I am using an old machine until the new one arrives. It doesn't have the software required to open your attachments. Could you fax them to xxx xxx xxx (number removed by editor.--ed.). Regardless of what the opinions say my personal intent in voting to approve the usi pf the specific language that is used in section 4-5-1 was twofold.If you read both the old and current Town Charters you will see that the current charter significantly diminshes the powers of the Manager from those the Manager had under the original Charter. In simple terms, under the original charter the Manager effectively functioned as the Board of Selectmen and the Council as a Town Meeting.Under the current charter the Council functions as both the Board of Selectmen and the Town Meeting.However, I felt that the Manager as the head administrator should have authority to organize the various Town Departments as he or she deems most efficient without interference from the elected officials. Therefore reorganization plans are only subject to an up or down vote of the Council without modification.My approval of the use of the language "under his or her jurisdiction" was to make it clear that his reorganizational powers did not extend to boards or departments which exercise decision making powers which are not subject to being overruled by the Manager. Those in my opinion are the quasi-judicial boards, Planning, Zoning, Alcohol, Health, etc. Section 4-4-2, which refers to 4-4-1 is in the charter for the same reason.To set the charter up any other way would have allowed for removal of board members who made decisions the Manager or Council didn't like or to allow expansion of Boards to allow the appointment of "friendly" Board Members.To sum it up it was my intent that the only way to change the number of members of a board that the Manager does not have decision making jurisdiction over was to amend the Charter itself. This email expresses my opinion only. You will have to speak with the other Charter Commission Members to get their opinions on the matter.
The recent Board of Health vote on Casella’s application to establish the Southbridge Landfill as a regional MSW facility should not be construed as final and binding. There are a number of circumstances that cast grave doubt upon the validity of the BOH proceeding.
According to the Southbridge Charter, the BOH is comprised of three members. A vote of the Council is not sufficient to change the Town Charter, nor does a town manager have the power to reorganize the Board of Health. Atty. Colognesi, the chairman of the charter commission, confirmed the limitations of the Town Manager’s authority in his email to me, attached hereto.
Until such time as the Charter is properly amended, there are only three legal members of the Board of Health: O’Leary, Zaido, and Barnardone in order of their appointment. Tremblay and Cook, the most recent appointees are invalid members. Only one of the three legal members of the Board voted to grant Casella’s proposal; the other two found that granting the proposal would pose a danger.
In addition, we will be filing an Appeal before Superior Court to overturn the vote to grant the Request, based in part on the fact that the Board has only three legal members, but also on the failure of the Board in following the Code of Massachusetts regulations.
The CMR calls for all parties to have an opportunity to present their case to the Board of Health. Nevertheless, the closing arguments and proposed findings were never presented to the Board by their Attorney, Michael Scott. When one of the Board members obtained the documents on his own initiative and presented copies to the Board, the Chair and Attorney Scott refused to allow them time to review them before calling for a vote. Moreover, they refused to allow the Board to discuss the Site Suitability Criteria on which the law requires their decision to be based. This is all a matter of record.
In addition, Atty. Scott wrote findings on behalf of the Board that the Board did not have an opportunity to read. Again, this is a matter of record. There are numerous other illegalities to justify this decision to be overturned on Appeal.
In summary, this matter is by no means decided, so it would be reckless indeed for the Acting Town Manager to spend money that the Town may not be entitled to spend.