Capital Planning: Town Manager misremembers; BOS silent and Town Counsel concurs

Last week I blogged about the Town violating its own Capital Planning Bylaw. The bylaw states in plain English the required duties, processes and procedures that empower the Capital Investment Planning Committee (CIPC) to develop a Capital Budget for the current year and a Capital Improvement Program for the following 5 years.   I asked the Town Counsel, Paul Kinny, for an opinion on whether the bylaw obligated the Town to submit all capital projects in general (and the police station project in particular) to the CIPC each year by Oct 1.

The Town Counsel ruled that the Town did not, claiming that the CIPC does not have purview over public buildings.  Below the dotted line is a detailed rebuttal that I sent to Town Counsel asking him to reconsider, but first some background.

This year the Town submitted the police station project to the CIPC on March 20, 2013.  It is important to note that this was well after the CIPC had developed and presented to the Finance Committee a recommended FY14 capital budget totaling $4.18 million on Feb 4. 

The report is on the Town web site.    Of course, missing from the budget is the biggest and most expensive capital project proposed for this year – the $7.5 million police station. Thus, when the Town finally submitted the project to the CIPC at the end of March – surprise, surprise - the new total capital budget jumped nearly 300% to $11.68 million, less the DPW leases.  See for yourself:

http://sudbury.ma.us/departments/CapitalImprovement/doc8363/FY14-CIPCReport-FinCom-2-4-13.pdf

Some have asked, what’s the big deal?  So the Town missed this year’s deadline, and apparently last submitted the police station project in 2007?  First, the Mar 20^th submission is not a near miss when measured against the Oct 1^st deadline; it is a gross violation.  Second, the bylaw requires that each year all anticipated projects requiring Town Meeting action for the next 6 years be submitted to the CIPC.  This allows the CIPC to consider the relative need, impact, timing and cost of these expenditures and the effect each will have on the financial position of the Town.

Over time the Town’s repeated disregard for the bylaw have had a deleterious effect on the capital planning process. The bylaw’s intent is to provide for an orderly identification of needed capital improvements.  Late submission or failing to submit a project in a year when it may not come before Town Meeting results in a disjointed capital budgeting process.  We have seen what happens - chaos ensues when last minute projects pop up, priorities are overridden and the required prerequisite processes ignored.  Effectively the planning becomes driven not by the CIPC but by the Town Manager, Maureen Valente.  Is this a planned chaos to usurp power from the CIPC and implement a private agenda?  Will the adoption of Article 22 gut the bylaw and legitimize what is now an ungoverned process?  That’s another blog.

Whatever the reason for the capital planning muddle, the first step in fixing the problem is to admit that a problem exists.  But the Town will have none of this.  It counters: The CIPC and FinCom can handle last minute changes. Don’t we always make changes the night of Town Meeting?  Yes, and here kudos go to the hard working and dedicated CIPC and FinCom members who have been dealing with the issues all year.  But what about the Town’s legislative body, Town Meeting?  The citizen legislators are left holding the bag, confused and forced to play catch up.  The compressed times significantly prejudice their right to be informed. 

So can the Town be compared to an addict who refuses to admit that a problem even exists?  Are there repeated patterns of behavior – ignore the rules, deny and cover up - that make a mockery of the Town goals of disclosure and transparency in government?

To that point, specific questions posed to the Town concerning the Capital Planning Bylaw’s applicability to public buildings have been met by disclaimers and silence.  How can this be given that Town leaders - Town Manager, Valente, and BOS members O'Brien and Drobinski – have had their hands in the bylaw pie from adoption to implementation, and therefore knew or ought to have known that it applies, for example, to the police station?

This conclusion is based on the leaders’ presence and involvement in the 1998 Annual Town Meeting’s (ATM) passage of the Capital Planning bylaw and the 2001 ATM’s passage of the article that appropriated funds for the construction of the Dept. of Public Works building.  All this is documented in the reply to Town Counsel below.

But, for me, the real epiphany that made public the Town’s disingenuousness came from the joint meeting of the BOS, Finance Committee, LS, SPS and CIPC.

In good faith I was trying to obtain information on the history and nature of the bylaw so as to better understand how it might be applied to future capital projects. I banked on getting answers from the vast knowledge that Valente, O’Brien and Drobinski had accumulated from their many years of public service.  What did I get? A bankrupt Sergeant Shultz treatment – We know nothing.  A key exchange says it all:

QUES: Ms. Valente weren’t you involved in the development and implementation of the Bylaw passed at 1998 ATM?

ANSWER:  I wasn’t the Town Manager [evasive to the nth degree.  Why not just answer?]

QUES: Well, weren’t you Finance Director?

ANSWER: I don’t remember?  [Evasive to the nth degree times infinity.  In point of fact the Town Manager was the Finance Director at 1998 ATM.  She took on the dual role of FinDir/Acting Town Manager in Oct 1999 and in Feb 2000 became the full time TM.]

Now I realize that the Valente, O’Brien and Drobinski triumvirate has been around for a long time.  Perhaps they really did forget (or as Roger Clemons would say, misremember) all they knew about the history of the Capital Planning Bylaw and the CIPC’s role in its implementation?  I’ll be the first to admit that they could forget more than most will ever know about Town affairs.

So either the triumvirate all had a collective case of amnesia, or they circled the wagons, dissimulating to mask the historical evidence that the bylaw has in the past and does now apply to Town buildings; that mandatory procedures were disregarded for this year’s police station; and wanted to avoid culpability for the bylaw violations.  Nothing to see here folks – move on.

Below is a letter I sent to Town Counsel documenting the key facts and history of the Capital Planning bylaw and the CIPC’s role in capital projects involving public buildings.  Perhaps a bit long, but I believe it is both informative and solid evidence for an indictment of the Town leaders’ egregious behavior.  I especially recommend reading the document that formed the basis for our current CIPC bylaw:  Developing a Capital Improvements Program, A Manual for Massachusetts Communities.  See

http://www.mass.gov/dor/docs/dls/publ/misc/cip.pdf

-------------------------------------------------------------------------------

Town Counsel,

You indicated that the case for the Town’s material violation of the Capital Planning Bylaw has merit, but judged it invalid on the grounds that:

“The Police Station does not come under the purview of the CIPC…The Permanent Building Committee has oversight, planning and construction of all “Public Buildings”. 

Still, I was heartened to hear that you are open to further discussion, and that as Town Counsel you make judgments based on the law and the facts.

Seeking to better understand the intent of the CIPC bylaw and to determine whether a precedent existed of its implementation with respect to public buildings more research was conducted.  I believe that the resulting new evidence is indisputable and that any unbiased observer would judge the violation argument to be valid.

First, with respect to the intent of the bylaw, does it cover public buildings?  In the 1998 Annual Town Meeting (ATM) proceedings, Article 26, Capital Planning Bylaw, one finds the then Town Manager, Ledoux, making the presentation. ( Drobinski is a member of the BOS; Maureen Valente is Finance Director and soon to be, as per the bylaw, an ex- officio member of the CIP; O’Brien is on the Planning board.)

BOARD OF SELECTMEN REPORT (ART. 26): The purpose of this article is to provide for the orderly identification of needed improvements and/or additions to the Town's physical infrastructure, and to schedule these in priority order over a five-year period. All of this is contingent upon the Town's ability to pay. Annually, the Capital Improvement Plan will be updated based upon changes in the Town's capital needs and fiscal capacity.

Currently, the Town's capital planning efforts are disjointed. The Long Range Planning Committee, which was created by warrant article, does not have the full authority that this Bylaw would establish¡ namely, review and consideration of school capital requests. In addition, several years ago the Finance Committee established the investment Priorities Committee, which reviewed projects in excess of $500,000. This Bylaw would unify the capital process and provide legitimacy for serious capital planning. The proposed bylaw, in addition to establishing a Capital Improvement Planning Committee, defines capital projects as having a useful life of at least five years, and a single year cost of $10,000 or a multiyear cost of $100,000. The Committee will inventory the fixed assets of the Town, consider the need, impact, timing and cost of the anticipated projects and the effects each will have on the Town's financial position. The Selectmen support this article.

John Drobinski:  Moved in the words of the article except: In Section 2 of the Capital Planning Bylaw, delete the words, "and the Lincoln-Sudbury Regional School Committee;" and delete the comma and insert the word "and" before "Sudbury Public School Committee."

The Motion received a second.

Steve LeDoux was recognized to make the presentation.  Article 26 establishes a formal capital planning process for the Town. The purpose of any capital improvement program is to identify the capital improvement needs of the community and the needs of the physical infrastructure and to schedule them in apriority order over a five-year period. All of this is contingent upon the Town's projected ability to pay.

Annually a capital improvement plan will be updated based on changes in the capital needs of the community. As this bylaw indicates, a capital bylaw is defined as a physical public betterment or improvement that involves a facility, a parcel of land or a piece of major equipment with a value of $ 10,000 on an annual basis and having a useful life of at least five years or a multi-year cost of $100,000.

Expenditures that do not meet these criteria should be included in the annual operational budgets as a capital outlay. This definition is taken from the experience of many cities and towns where more restrictive definitions have resulted in inappropriate items being considered as capital improvements.

This recommended system is designed with sufficient safeguards to insure that public funds are expended in a controlled manner consistent with adopted public policy.

These items include new public buildings, additions or modifications to existing buildings, including property acquisition and equipment to furnish the buildings; land improvements, including acquisition; development of major improvements such as grading, landscaping and fencing of parks and playgrounds; major equipment replacement and refurbishment, and street reconstruction and resurfacing excluding routine maintenance.

http://sudbury.ma.us/departments/Clerk/doc5463/1999_Proceedings_Official.pdf

Second, a concrete implementation of the CIPC bylaw is found in the DPW building project, which is the last major public building that the Town constructed.  The precedent setting article was passed at ATM 2001.  Also, note the text that vitiates any argument which asserts that the PBC mission statement supersedes the CIPC bylaw:

[Ms. Roopenian, BOS Chair; John Drobinski, BOS; Larry O’Brien, BOS; Maureen Valente, Town Manager]

ARTICLE 7, FY02 CAPITAL BUDGET (A), DPW FACILITY:

David Wallace, Chair of the Capital Improvement Planning Committee: Move to appropriate the sum of $4,733,800, to be expended under the direction of the Permanent Building Committee, for the purpose of remodeling, reconstructing constructing additional space, or making extraordinary repairs to the existing Town Highway Department facility off Old Lancaster Road and/or constructing a new Town building, purchasing additional equipment and furniture, and landscaping for a Department of Public Works and other Town offices, and all expenses connected therewith, including professional, engineering, architectural services and preparation of plans, specifications and bidding documents, supervision of work and bond and note issuance expense; and to raise this appropriation the Treasurer, with the approval of the

Selectmen, is authorized to borrow $4,733,800 under General Laws Chapter 44, section 7; all appropriation hereunder to be contingent upon the approval of a Proposition 2.5 Debt Exclusion in accordance with General Laws, Ch. 59, s.2tc.

Additional information may be fund in the warrant’s appendix on page FC-43:

CAPITAL IMPROVEMENT PLANNING COMMITTEE REPORT

The total recommended capital improvement budget is $5,236,800.  It includes funds for vehicles, equipment, improvements at both Feeley Park and Haskell Field, additional walkway construction, and construction of a new 3O, 00O square foot Public Works facility.

The committee struggles with identifying the "right" amount of capital spending that should be made by the Town every year. We recognize that if the Town does not do at least a minimum to protect and maintain our infrastructure and equipment, we risk losing the original investment put into these assets… The CIPC recommends that projects totaling $155,000 be included in the FY 02 Operating Budget, and projects totaling $5,081,800 be considered outside the levy for capital exclusion or debt exemption funding.

                                                          FY02         FY02

DEPARTMENT  CAP BUDGET ITEMS       DEPT REQ   CIP REC         SRC FUNDING

---------------------------------------------------------------------------------Public Works     Plant Facilities                  4,683,800        4,683,800    cap ex or debt excl

Recreation         Feeley                                   48,000          48,000        cap ex or debt excl

Planning Brd      Walkways                          150,000         150,000        cap ex or debt excl

Public works      1 ton 4x4                                35,000             35,000    fy02 oper budget

….

------------------------------------------------------------------------------TOTAL CAPITAL REQUESTS                          5,336,392        5,236,800                                          

For the complete text see page 34 of 146 and FC-43

http://sudbury.ma.us/departments/Clerk/doc5465/2001_Proceedings_Official.pdf

 Third, Town Counsel, no one has ever one claimed that the police station comes under the purview of the CIPC, if by purview you imply authority or control with respect to plans and specifications being developed in conjunction with the CIPC in the design and construction of public buildings.

 Rather, the first sentence of the CIPC bylaw, Section 2 states that:

“The Committee shall study proposed capital projects and improvements involving major tangible assets and projects which 1) have a useful life of at least five years; and 2) have a single year cost of $10,000 or a multi-year cost of $100,000 or more”

In short the requirement is for the CIPC to study capital projects involving major tangible assets, which, by definition, includes public buildings.  It logically follows that in order to study a project, the committee must possess certain information concerning said project.  The second sentence ensures this by requiring that:

“All officers, boards and committees, including the Selectmen and Sudbury Public School Committee, shall by October 1 of each year, give to the Committee, on forms prepared by it, information concerning all anticipated projects requiring Town Meeting action for the next six years.”

It is a red herring to assert that the two sentence 1957 PBC mission statement overrides the 1999 CIPC bylaw; or, worse, to assert that a project’s submission in a previous year fulfills the CIPC bylaw.

The “each year by Oct 1” clause obviates any pretense that submission in a previous year fulfills the bylaw’s requirement.  The reason for and importance of the “each year” clause has been documented above.

As for the PBC mission statement:

“The duty of this committee shall be to have general supervision over the design and construction of all public buildings, including the authority to employ professional assistance and to enter into contracts on behalf of the Town for the preparation of construction plans and specifications and for the construction of buildings and other structures.   All such plans and specifications shall be developed in conjunction with and subject to the approval of the appropriate committee, board or department head.”

There is nothing in the CIPC bylaw that infringes on the PBC’s duties of general supervision over design and construction of all public buildings.

Similarly, as for the PBC mission statement’s second sentence, nowhere in the CIPC bylaw is there a requirement that the PBC plans and specs are to be developed in conjunction with the CIPC.  I assume you well know that such entities might instead include, for example, the Design Review or Planning Boards.

Again, the CIPC bylaw simply asserts that any project anticipated coming before ATM shall be submitted to the CIPC each year by Oct 1.  In theory it is not even the PBC that would submit the project, but rather the original article petitioner; e.g.: in the case of the Police Station, the BOS or the Town. 

The scope and intent of the CIPC bylaw is clear from the 1998 ATM. In fact the bylaw was largely copied from:

Developing a Capital Improvements Program

A Manual for Massachusetts Communities

http://www.mass.gov/dor/docs/dls/publ/misc/cip.pdf

But note the blank in the template:

All officers, boards and committees, including the Selectmen and the School Committee, shall, by ______ of each year, give to the Committee, on forms prepared by it, information concerning all anticipated projects requiring Town Meeting action during the ensuing six years.

Town Meeting made an explicit decision in choosing a particular deadline date.  As the SJC indicated, those who ignore or extend lawfully established deadlines do so at their own risk.

Also, notice that the BOS changed many of the implementation or cut off dates at 2010 Town Meeting but for whatever reason left the CIPC’s deadline alone:

ARTICLE 6 – AMEND BYLAWS: TOWN MEETING COMMENCEMENT & BUDGET

SUBMISSION

Selectman Lawrence O’Brien moved in the words of the amended motion below:

Move to amend Article 1, Section 2 of the Town of Sudbury Bylaws by deleting the word

“April” from the first sentence and substituting therefor the word “May” and by deleting the words “January 31” from the second sentence and substituting therefor the words “last day in February”; and to amend Article II, Section 1 by deleting the words “December 31” from the first sentence and substituting therefor the words “January 31 preceding the Annual Town Meeting,”; and to amend the first sentence of Article IV, Section 5 by deleting the word “December” and substituting therefor the word “January” in the first clause and by deleting the word “January” from the second clause and substituting therefor the word “February”; and to amend the first sentence of paragraph 2 of Article IV, Section 5, by deleting the words “February 28th” and substituting therefor the words “March 31st”.Submitted by the Board of Selectmen (Majority vote required)

In summary, the intent of the CIPC's function is made clear by studying the 1998 Annual Town Meeting proceedings, Article 26, the Capital Planning Bylaw.  Public buildings projects are, in fact, required to be submitted to the CIPC for review each year by Oct 1.  There is no better example of this in action than the DPW building project found in the 2001 ATM Capital Budget, Article 7.  As the first public building project (and only) built since passage of the Capital Planning Bylaw it ought to serve as a precedent for any that follow, including the Police Station

The grossly late submission of the Police station capital project by the Town at the Mar 20, 2013 CIPC meeting was, by definition, a material violation the Town's Capital Planning bylaw.  The presence of the Police Station article in the Warrant is a result of errors in process and procedure that are evident, obvious and clear.  Moreover, the evidence indicates that the errors which included egregious violations of the Town’s Capital Planning Bylaw were known and aided and abetted by the submitters and the approvers.  Given the history, the facts and the law, one must conclude that the violations described could materially prejudice Town Meeting’s citizen legislators’ substantial right to be informed.  If requested, the BOS ought to IP the Police Station project.