NEWPORT CITY – A Vermont judge has taken a crack at a wrinkle in town meeting voting that has stopped debate in many towns – the habit of “passing over” articles.
In Lowell at town meeting 2012, voters passed over an article decrying the problems caused by the Lowell wind project. And then later, when voters petitioned for a special meeting to reconsider the article, the Lowell select board said no. The board said a passed-over article was never considered by voters in the first place and can’t be reconsidered.
Judge Howard Van Benthuysen disagreed with the select board in a ruling last week in Orleans Superior Court, Civil Division.
“The court finds that the effect of the ‘pass over’ motion is that of a denial of an article and that a motion to reconsider is therefore appropriate,” the judge wrote.
The judge’s ruling made Lowell resident Ed Wesolow happy.
He filed the lawsuit last year because he wants that debate now.
He hopes that the select board will call for a special meeting to debate the article soon, now that the judge has said they have to schedule the special meeting. Otherwise the board will have to appeal.
“Now we can have the full discussion,” Wesolow said.
“Now the turbines are running, some homes have been destroyed and other negative impacts are coming true, maybe we can have the open debate we should have had in the first place. We can vote armed with more of the facts and not just a vote on an over-sold rosy one side of the picture.”
Select board chairman Alden Warner could not be reached for comment Monday. The board meets this evening.
Wesolow did not ask the judge to make the town cover the $238 cost Wesolow paid to file the lawsuit. The town wanted him to pay for their costs if he lost, Wesolow said.
Wesolow’s attorney, noted open meeting law expert Paul Gillies, took on the case pro bono, Wesolow said.
Wind Debates Dodged
In March 2012, the Lowell select board put three articles about the wind project or renewable energy on the ballot for town meeting, which is held on the floor in the Lowell Graded School.
One article expressed support for the wind project. The second was about a concept of local, small-scale, renewable energy generation that Wesolow promoted. Voters heard him out but voted against that article.
The third article, the one that led to the lawsuit, asked for voters in Lowell to “express their opposition to the Green Mountain Power and VELCO wind project,” and included a long list of the problems that wind opponents identified like noise, erosion, stress and impacts on tourism.
At town meeting, a voter called for the article to be passed over, which was supported by enough voters and which cut off debate about the article before it was even considered. The majority voted to pass over the article.
Within 30 days, supporters of the passed-over article filed a petition to the select board for reconsideration. Wesolow, who signed the petition, said Monday that he wanted the town to have the debate, not to just stop all argument.
The select board did not set a vote to reconsider the article because they said a passed-over article was never considered in the first place.
Wesolow sued to force the select board’s hand.
Attorney Gillies said in a motion before the court that “rejecting the petition and failing to warn a special meeting is (the select board’s) blatant attempt to escape their duties as a select board. The select board’s refusal to grant the special meeting was arbitrary and unfounded in law.”
The judge agreed with Gillies, saying that otherwise the act of passing over an article would mean to table something indefinitely, which is not possible.
“The court finds that the effect of the ‘pass over’ motion is that of a denial of the article and that a motion to reconsider is therefore appropriate. The select board’s decision not to decide on the article is, in and of itself, a decision.”
The judge went further, saying that if he accepted the select board’s argument, he would be saying that select boards could avoid reconsideration petitions all together by passing over articles they oppose instead of voting against them.
A majority willing to use the passing-over mechanism could avoid all debate at board meetings and at town meetings, the judge suggested, which would render statutes in open meeting law that promote debate ineffective or irrational.
Moderators Take Note
In a footnote in his short ruling, the judge pointed out that voting to pass over an article in the way that the town of Lowell has done in this case isn’t in Roberts Rules, the Bible for town meeting moderators.
The closest or most similar motion allowed in Roberts Rules is to postpone indefinitely. An affirmative vote to postpone an article indefinitely can be reconsidered by a petition according to Roberts Rules, the judge noted.
Tabling an article, which was once called laying an article on the table, requires that the article be taken up again later in the same meeting.
Boards or voters can “pass over” the next order of business on an agenda, but it has to be taken up again immediately afterward, the judge noted.
|Wind Watch relies entirely
on User Funding