Rule of Lawyer: Tiverton Town Solicitor Andrew M. Teitz and Disenfranchisement of a Lowly Blogger
Reflection has not changed my opinion, stated while liveblogging, that Mike Burk, the moderator of today’s financial town meeting in Tiverton made every effort to be fair and, on the whole, succeeded. That said, he did make a few substantial errors, one of which brings into stark relief a problem of governance pervasive in Rhode Island — namely, the undue power of hired attorneys in the conduct of school and municipal business.
I am neither an experienced parliamentarian nor a lawyer, so in the flow of the meeting, I focused more on principle than on procedural law. Moreover, as is evidenced by my ready willingness to modify an amendment that I’d made to the proposed school budget, I wasn’t heavily invested in the specific numbers that I put forward. But it is my opinion that Tiverton Town Solicitor Andrew M. Teitz strove to disenfranchise me as a taxpaying voter in the town, and that Moderator Burk permitted him to accomplish that goal.
As I offered the initial discussion on my amendment, Solicitor Teitz interrupted to make a point of order (stream, download):
Teitz: Excuse me, I have a point of order. The number that you suggested for the appropriation is 20,046,960; is that correct? Which is actually less than the number that was appropriated last year.
Burk: Which means that that is out of order, am I catching that?
Teitz: Yeah, the state law requires that they receive at least as much… that the appropriation be at least as much as it was in the previous year.
Katz: My understanding, though, is that if the number of students declines, maintenance of effort permits an adjustment downward.
Burk: I will rule that out of order if it is below the number that was appropriated last year.
Teitz: You are correct; it can be adjusted if you have the information on that.
Katz: I’m not aware that I actually need that information to pass an amendment. These are questions of… I mean, if people distrust my number, they can vote my amendment down and vote for another one or the main motion, if they prefer, but I’m not understanding why I… [somebody handed me a piece of paper.] Alright: In the past six years, enrollment is down 13.5%, and tax spending has gone up 45%. I think if we’re trying to show maintenance of effort, we’ve certainly done so.
School Committee Chairman Jan Bergandy requested that the school department’s attorney Stephen Robinson have the floor to offer relevant information. What he offered (included in the above audio link) was a statement that he’s previously made as to the procedure for proving maintenance of effort and the right of the FTM to address line items in the school budget, as opposed to the whole thing. Then, Budget Committee Vice Chairman Rob Coulter pointed out that the law is certainly not as unambiguous as Mr. Robinson had stated and argued that, given the trends in enrollment and funding, it is simply “incorrect” to state that the previous year’s exact dollar amount must be matched. Furthermore, Rob noted Teitz’s opinion, elsewhere, that the charter trumps state law in these contexts, and the charter allows for line-item modification.
At that point, Burk insisted that he was going to rule the amendment out of order, based on a lack of “significant enough details” and gave me the option of modifying it to avoid the objection. Wishing to expedite the process, I agreed. However, upon further discussion, I thought it necessary to take the thread up again (stream, download):
Katz: I disagree that the legal issues are a matter of procedure for this particular meeting. An amendment is not “out of order” because there may be litigation. This body can submit the numbers that it would like to do, and that could be resolved after the fact. The fact that there are lawyers in the room who are willing to testify to the law does not mean that we are bound by their judgment. And I would remind people that Mr. Coulter is also a lawyer, so if he presents a different opinion…
Burk: He is not here to practice law. Our solicitor is our legal council.
Katz: Right. But if they’re simply giving an opinion of the law, we can disregard that. They’re not judges. They’re not juries. And they’re certainly not executioners.
Teitz: Point of information regarding that. The advice that is given here is to the town. The client is the Town of Tiverton. You’re right: it is to this financial town meeting, as interpreted by the moderator, and you can listen to everybody. You can listen to all the lawyers, including me, as to what the advice is. And this body, if there’s an appeal — if you want to do it over a dollar [the substantial difference of my proposal] — you can. An appeal going through the proper decision… an appeal to the moderator’s decision, a majority vote, and whatnot can overrule that. Obviously, you do it at your own risk, but you are correct. The body can overrule the legal opinion through the moderator if you wanted to do it. I have provided you with the information; the moderator has ruled it “out of order”; but even if it is out of order, it can be appealed.
Katz: I’m merely stating the opinion that it is not the procedure that the lawyers in the room dictate the procedure of the meeting — dictate what’s in order and what’s out of order. We can vote on what we want.
Teitz: I’m agreeing with you, but there’s a way to do it, which would be to appeal the moderator’s decision.
Katz: Right, but that’s only if the moderator turns to the lawyers and takes your dictation wholesale.
The point that became obscured amidst all of Teitz’s agreeing with me was that he had managed to deprive me of my right to make the motion that I desired in the financial town meeting despite three parliamentary and legal matters of which he — as the paid “expert” in the room — should have been knowledgeable and of which the moderator — presumably qualified for his role — should have been aware:
- Mr. Teitz had no standing to interrupt me for a point of order. Robert’s Rules allow members to make such interruptions, but not being a resident of the town, Teitz does not qualify. Somebody else could have done so, and the moderator could have requested Mr. Teitz’s opinion, but as it happened, the lawyer displayed his eagerness to turn the direction of the meeting in a preferred direction, and the moderator let show his willingness to be led.
- Mr. Teitz’s point of order was too late. As one can plainly hear (stream, download), my motion to amend had been duly made and seconded, and the moderator had stated the question and opened the floor for debate. According to Robert’s Rules: “After debate on such a motion has begun — no matter how clearly out of order the motion may be — a point of order is too late.”
- There is no restriction in Robert’s Rules, the Tiverton Town Charter (PDF), or the Rhode Island General Laws that forbids a town meeting from explicitly taking actions that challenge the law. Indeed, the RIGL makes provisions for a ballot vote option in situations “involving… the incurring of liability by the town.” In other words, it is not out of order to make a motion that knowingly opens the door to litigation, much less a motion that kinda-sorta, in the opinion of a hired lawyer, might open that door.
None of this is to say that I’m particularly upset about the outcome. I would suggest, however, that the people of Tiverton — and I’m sure this applies across the state — should insist that our elected officials enlist the services only of lawyers who are sufficiently knowledgeable and ethical to avoid trampling the rights of citizens. Because I know it couldn’t possibly be the will of those officials to do so.
For further clarification of my thoughts on Teitz’s speech about the proper procedure for disregarding the advice of lawyers: The hired legal advisers do not enter the procedure as issuers of decisions that must be overruled. They are there to offer analysis of the legal repercussions of particular decisions and, if necessary, to give suggestions as to the specific procedural rules governing the meeting. There is no procedural rule that requires a meeting to steer well clear of potential sources of legal liability.
Furthermore, it is inappropriate for the moderator to behave as a proxy by which the legal advisers can accomplish this end. Moderators are not the dictators of the meetings that they are running. Unless I’m mistaken, to accomplish their end, the moderator should have put forward as a resolve — or the body should have made as a prior motion — a stipulation that no motions would be entertained if, in the judgment of the town solicitor, they stood a reasonable chance of creating an opportunity for litigation. That would have negated my objections #2 and #3 above.
(Before anybody on the other side spends too much time pondering the possibilities, let me suggest that I think Tiverton Citizens for Change could have a lot of fun with such a rule.)