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Town counsel says most petition articles won’t fly with attorney general

FAIRHAVEN – Town counsel Thomas Crotty told selectmen that most of the special Town Meeting articles on Feb. 15 won’t pass muster with the state Attorney General.

Meeting members will have just four articles to consider next Wednesday, but three of them are bound to be controversial – especially the one on putting a halt to the wind turbines.

That’s article four. It calls for voting “to immediately take all actions necessary to stop and suspend the construction, installation and operation of two wind turbines” on town land off Arsene Street.

Town Meeting approved the two wind turbines in 2007.

Mr. Crotty said Town Meeting can reverse an earlier vote only if “no rights have become vested or fixed under the former vote.” In this case, he said, the town has entered into “binding contracts with the developers of the wind turbine project.”

He added, “Town Meeting cannot now rescind that former vote.”

Mr. Crotty said “as worded,” the petition article put forth by Windwise “is improper and would be ineffective if voted by Town Meeting.”

Mr. Crotty also said that town officials have the authority to enter into contracts like the one for the wind turbines, and, “The Town Meeting does not have general authority to direct the specific action of those officers and employees.”

He said Town Meeting’s authority over elected officials and town employees is limited to those matters that require Town Meeting approval, such as enacting town bylaws.

Mr. Crotty also picked apart the other articles submitted by Windwise and Fair Action Fairhaven. Those articles involve recalls of elected officials and term limits.

Mr. Crotty said Town Meeting may have the authority to impose term limits on most elected officials, but “probably not” on selectmen under state law.

He said the town would need to seek a Home Rule petition from the state legislature to make such changes and must exclude selectmen.

On Monday, selectmen said there are other issues with the term limit article because it limits elected officials to two consecutive terms or six years, yet some boards have four or five-year terms. These include the Planning Board and Housing Authority.

Another petition article amends a town bylaw on recall of elected officials by extending the time for return of recall petitions from 14 to 30 days. It also reduces the number of signatures needed from 20 percent of voters to 10 percent.

Mr. Crotty said this bylaw cannot be amended by vote of Town Meeting, but only by the General Court and that the General Court can’t act on a request like this from one town unless it is petitioned under the Home Rule Amendment to the state constitution.

Thus, this article would also be “improper and would be ineffective if voted by Town Meeting,” Mr. Crotty said.

Mr. Crotty’s letter was read by selectmen Monday night. Asked why they didn’t get the opinion before the Feb. 15 Town Meeting date was set, Executive Secretary Jeffrey Osuch said they had to because the petition was submitted to the town with the needed number of signatures. Windwise and Fair Action Fairhaven garnered more than 300 signatures on their petition.

It’s not clear, however, how many members of the petitioning groups are Town Meeting members. If they don’t make up a majority, they will have to convince Town Meeting members to approve the articles. That would include reversing their turbine approval from 2007.

Fair Action Fairhaven grew out of Save Our Neighborhood Schools, the group that wanted to keep both Wood and Rogers elementaries instead of combining them. The special Town Meeting articles on term limits and recalls reflect that group’s frustration with town government.

Fair Action Fairhaven is also seeking more transparency by calling for meeting minutes and agendas to be posted in a more timely way and to be available to the public in places like the library. The town selectmen took steps to move in that direction Monday. (See related article in this issue.)

The town has placed its own warrant articles on the agenda. These involve contract agreement with some town employee unions. These also are covered in a separate article in The Advocate.

The special Town Meeting begins at 7 p.m. next Wednesday, Feb. 15, at Hastings Middle School. Mr. Osuch said it could be a 15-minute meeting, unless the petitioners will be making presentations.