Panel Examines Charter Powers And The Law

By John Voket

Town Attorney David Grogins laid out a number of foundational issues regarding the current Newtown Charter during a 40-minute appearance as the first invited guest of the newly-formed Charter Revision Commission. Mr Grogins appeared before CRC members July 25 to clarify certain elements of the constitutional document he feels need to be modified or scrapped altogether.

His visit with the CRC was the first of about a half-dozen that will take place in the coming weeks as the commission members begin to dig in and draft possible changes to the charter. Among other invited officials are town Finance Director Ben Spragg, Timothy Holian, acting chair of the Legislative Council, school board chairman Elaine McClure, and John Kortze, chairman of the Board of Finance.

First Selectman Herb Rosenthal is planning to attend next Tuesday’s meeting at 7 pm to answer questions and discuss the responsibilities of his office and the Board of Selectmen.

During his talk, Mr Grogins reminded the CRC that he has not only served as town attorney for nearly 18 years, but has consulted with several charter panels here and in other communities including Ridgefield.

“I’ve reviewed the charge the Legislative Council has issued to your commission and I think it’s an overall good list for many reasons,” Mr Grogins said. “What I want to do here tonight is to give you some lessons from the past, as well as caution you on how to approach things.”

He referenced the last charter procedure, which he said was “very ambitious.”

“Problems emerged in the questions raised that were petitioned to be placed on the ballot,” Mr Grogins said. “It’s a cohesive document and you have to be careful. Some sections, not all, are dependent on one another. I caution you to not make changes, even procedural changes, without looking at their complete ramification throughout the whole charter.”

Mr Grogins said the CRC should be wary of extracting elements of other town charter documents because certain provisions pulled from other documents might not work well if plugged in to the Newtown document.

“I’ve reviewed a lot of charters, and you wonder how some of the language ever got to be the way it is,” he said, reminding the panel that many important legal decisions are determined by the language in the charter.

The town attorney also cautioned that the CRC should seek consensus among political factions that might be affected by suggested revisions.

“In the last charter revision, I believe the intent was to invest substantial power in a Board of Finance,” he said. “To do that, the authority had to be taken from the Legislative Council. That is the body that ultimately says yes or no [to suggested revisions]. If you are going to take authority from a body that has an important role to play in the town, you better have some discussion with the people who are going to be affected by it. If you don’t have some consensus, you are going to have lots of problems.”

Mr Grogins said the former CRC may have been intent on taking substantial authority from the council, but it wasn’t going to happen without the Council’s approval.

Charter Commission chairman Al Cramer referenced sections 1, 2, 9 and 25 of the charge as sections he wanted to focus on with the town attorney.

“We’re wondering about property law, and we’re wondering about clarification about section one, I don’t think we understand section one yet,” Mr Cramer said.

The first charge relates to the Legislative Council and any board affected authorizing the defense of or the prosecution of actions on behalf of the town. He said the history of that charge is likely related to a protracted legal battle against the state when the Garner Correctional facility was first proposed.

“The first selectman at the time chose to take a very aggressive legal position with regard to that, and we spent over $500,000 when there was very little chance we would succeed,” Mr Grogins recalled. “There probably should have been control over that action, and this might be the reason why more controls are being sought on that.”

The attorney then referenced the Planning and Zoning Commission, which he said is defending itself all the time. That board has to go to the council any time substantial funds are required to defend an action.

“If the council says it doesn’t like the cause of action, though there is an appeal brought; and chooses not to provide the legal funds, then it is in fact acting as the super planning and zoning commission. I don’t think this is what the [Charter] intended,” Mr Grogins said. “The question really is whether it’s appropriate for the Planning and Zoning Commission to not defend its regulations.”

Commissioner Guy Howard questioned who the P&Z reports to, and who oversees the budget. Mr Grogins replied that the P&Z ultimately answers to the electorate, although the budget is controlled by the Board of Selectmen.

Commissioner Joan Plouffe asked how the town would protect itself from an overzealous P&Z commission. Mr Grogins said, once again that the board ultimately answers to the voters, although the P&Z commission’s legal budget can be manipulated somewhat by the selectmen.

Mr Grogins said he would hate to see a situation where a P&Z commission sought legal recourse to extract funds so it could defend an action. But he was loathe to offer any specific suggestions on how to administer the particulars of how to determine a proprietary legal budget for that commission.

Mr Cramer then turned attention to ways his commission might strengthen the Capital Improvement Plan and the townwide Plan of Conservation and Development.

The town attorney said he thought that was one of the goals of the last CRC, but the effort resulted in changes to other areas of town government being affected.

“We ended up with a somewhat emasculated Legislative Council with many of its review functions given to the Board of Finance, which ironically has no bottom line authority,” Mr Grogins said. “Where towns that have active legislative councils, they perform the role of the town meeting. So you might want to think about vesting the council with some of the authority now given to the town meeting.”

Mr Cramer then said he was concerned about the town meeting process, pointing out four town meetings in 2005 approved more than $18 million in appropriations.

“We’re going to have probably $45 million coming up as an appropriation. I’d hate to see that go to town meeting,” Mr Cramer said.

Mr Grogins then suggested the CRC could put restrictions on the process saying matters under $5 million can be decided by the council, eliminating the town meeting. Everything above that amount can go to referendum.

“Checks and balances are good, but with a hundred million dollar budget in a town of 28,000 people, sometimes you have to vest authority in representative government,” Mr Grogins said. “Participatory democracy is fine, but when you get two people at a town meeting [deciding on millions of dollars], I’m not sure you are serving the taxpayers.”