Town Violates Capital Planning Bylaws

This blog documents blatant violations of the Capital Planning Bylaw. First, please understand that the intent is not to give a black eye to the citizen volunteers serving on Town Committees; they selflessly devote their time and efforts to public service, striving to do their best. 

Rather, the core of the problem lies in the abuses committed or condoned by Town leaders, starting at the top with the Town Manager, Maureen Valente, and BOS Chairman, Larry O’Brien.

 In trying to understand the mission of the Capital Investment Planning Committee (CIPC), I queried current and former members of the CIPC, Board of Selectmen, and the Finance Committee (FinCom).  All emphasized that the principal task of the CIPC is to recommend a capital budget as defined in the Town Bylaws under ARTICLE XXV, CAPITAL PLANNING:

SECTION 3: The Committee shall prepare an annual report recommending a Capital Improvement Budget for the next fiscal year, and a Capital Improvement Program for the following five years. The report shall be submitted to the Finance Committee for its consideration. The Committee shall submit the capital budget to the Annual Town Meeting for adoption by the Town.

The CIPC’s role in preparing a capital budget is vital given:

SECTION 4: Such Capital Improvement Budget, after its adoption, shall permit the expenditure on projects included therein of sums from departmental budgets for surveys, architectural or engineering advice, options or appraisals; but no such expenditure shall be incurred on projects which have not been so approved by the Town through the appropriation of sums in the current year or in prior years, or for preliminary planning for projects to be undertaken more than five years in the future.

But, apparently, less understood; or, at least, less adhered to is the section defining proposed capital projects and the submission thereof to the CIPC:

SECTION 2: 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. 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. The Committee shall consider the relative need, impact, timing, and cost of these expenditures and the effect each will have on the financial position of the Town. The Committee shall inventory the fixed assets of the Town with the assistance of Town staff, prioritize the capital requests submitted by Town boards and departments, and develop a financing strategy for implementation.

So, what were the Capital Planning Bylaws violations and were they acts of acts of omission or commission? 

It is obvious that key Town leaders - the Town Manager, the Assistant Town Manager as well as BOS Chairman Larry O’Brien - are familiar with the CIPC bylaws.  This is indicated by their presence at the first CIPC meeting of FY13 where, astonishingly, Valente and O’Brien announced their intent to ignore the bylaws by not appointing members as per Section 1.  Essentially the attitude was: Let’s violate the bylaws in the hopes that we can get them changed later.

Fragment of Minutes of the CIPC meeting, November 14, 2012

Present: Pascal Cleve, Larry Rowe, Tom Travers, Ted Fedynyshyn, Eric Greece, Maryanne Bilodeau, Maureen Valente, Larry O’ Brien

7:35 Town Manager Maureen Valente and Town Selectman Larry O’Brien addressed the committee, regarding proposed changes to the CIPC by-laws and appointment of members for FY 2014. Drafted by-laws were distributed to all those present. Proposal to change committee size to 5 members from 7; minimum capital items of $25k, instead of $10k.

Both Maureen and Larry stated they don’t intend to appoint two new members for 3 year terms because it doesn’t make sense since they have recommended this bylaw change.

Discussion followed.

But all is not lost.  The CIPC pushed back against Valente and O’Brien’s lawlessness at their next meeting on Dec12, 2012.  From the minutes the CIPC voted to:

“appoint the full seven members to the committee. This recommendation was made understanding and recognizing that a by-law change might be approved at the 2013 Town Meeting that would change the make-up and mission of the committee, but it would enable us to be in compliance with the existing by-law.”

Bottom line, it is reasonable to conclude that if Town leaders were changing the bylaws then they knew and understood them.  Thus, if violations occurred, they were acts of commission.

But, more important, let’s examine the heart of the bylaw violations – The non-compliance with the below Section 2 clause, which to date Town leaders have brushed aside or refused to acknowledge:

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.

The evidence for the violations is based on the CIPC minutes.  For the latest example, note the work of the Mar 20, 2013 meeting below.  Here, is important to distinguish between the Operating Capital Budget (item 2) and Capital Projects (items 3, 4, and 5).  The latter are covered under the above clause requiring submission by Oct 1 of each year.  The minutes indicate that the police station is being presented to the CIPC for the first time in this Fiscal year.

Attendees: Eric Greece, Tom Travers, Larry Rowe, Maryanne Bilodeau, Bill Braun, and Jim Kelly

1) Acceptance of minutes: Minutes of the January 16, 2013 meeting were approved.

2) Revote of Capital Budget: A motion was made and seconded that the committee amend their approval and recommendation to the Selectman and the Finance committee…

3) Fairbank Roof: Jim Kelly updated the committee on the proposals…

4) Police Station: Bill Braun and Jim Kelly presented the preliminary plan of a proposed police station on Hudson Road…

5) Town Center Project:  Jim Kelly was present for the discussion of the Town Center project. This project was previously reviewed by the committee…but the funding for this project has changed...

So, what's the big deal if the deadline for the submission of a given capital project is violated? Reading the Sudbury’s General Bylaws one finds many instances of important deadlines that need to be - SHALL BE - followed. To list just a couple: Article 1, Section 1:

"The Annual Town Elections shall be held on the last Monday in..."

Or, Article 2, Section 1:

"The Warrant for each ATM shall be closed by Jan 31 preceding the ATM."

Are the Town, boards, schools, and public free to ignore such deadlines?  According to the Mass Supreme Judicial Court, those who ignore or extend lawfully established scheduling deadlines without prior consent do so at their own risk:

The highest court in Massachusetts has thrown out a request after prosecutors missed a mandatory deadline. The SJC said the delay was not justified by "extraordinary circumstances."

And, more locally, the BOS just rejected the inclusion of 4 articles in the warrant at a Feb 19, 2013 meeting.  There, a petitioner, Ralph Tyler, argued that multiple articles on one petition was legal; that his articles were vitally important to Sudbury seniors; that the BOS ought not to rely on Town Counsel’s incorrect interpretation; and that, ultimately, it was within the BOS’s discretion to render a final decision. 

Haarde wondered if there was some way to resolve the conflict amicably; O’Brien indicated that Tyler “knows the procedures as well as anyone…at some point we have to go by the rules.  The deadline was not met” and Drobinski added that, “While he had no problem with the content, Tyler knew the process for submission”. 

Notice how O’Brien and Drobrinski emphasize the importance of following processes and procedures.  In essence: Nothing we can do; rules were not followed, deadlines not met; request denied. 

For those who would argue that a missed deadline on a key capital project is merely a technical violation, keep in mind that one of the intents of the bylaw is to allow the CIPC (and by extension the FinCom), sufficient time to: "consider the relative need, impact, timing, and cost of these [capital] expenditures and the effect each will have on the financial position of the Town"

 The Oct deadline protects against submission of capital projects that otherwise could be rammed through the CIPC at the last minute.  For example, with a placeholder article and no cutoff, the time span between CIPC consideration and Town Meeting could be reduced to the night of ATM. 

Thus, a deadline violation limits the opportunities to study an issue - not only for the CIPC and FinCom - but also for the Town Meeting citizen legislators.  Ultimately, ignoring the bylaw’s cutoff date increases the potential for poor outcomes or unintended consequences of warrant articles that pass ATM.

To sum up: 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.  Adding fuel to the fire the CIPC did not even publish an agenda on the Town’s website prior to that meeting.

Key Questions:  What are the possible remedies?  Ought the remedy to be more severe if Town leaders knowingly violated the bylaw – an act of commission versus omission?  Is the BOS obligated to withdraw the infected article(s)?  Or, ought all parties, including citizen legislators, let the matter slide?  Can you say, this is how we’ve always done these things - nothing to see here folks – move on?

And what if a single Town meeting member believes that he or she did not have adequate time to consider the complex issues involved in the $7.5 million Police Station project?  If so could a valid Point of Order be raised at Town Meeting based on the claim that the presence of the article in the Warrant resulted from an error in procedure and process that is evident, obvious and clear; that the error was known, aided and abetted by the submitters and the approvers; and that the error  materially prejudiced their substantial right to be informed? 

I have asked Town Counsel, whom the moderator would ask to rule on such a request at ATM, for his opinion.  No reply to date.  Time is running out. 

What a bind into which Town leaders – principally the Town Manager, Valente, and the BOS Chair, O’Brien – have placed Sudbury.  Their mismanagement and knowing violations of the Town’s Capital Planning bylaws have put key capital projects in jeopardy.  One can only hope that the move from 3 to 5 Selectmen will help to prevent such behavior.