Friday, October 17, 2014


Hello all,

I hope everyone is enjoying the fall. As you may have heard, circumstances have arisen in the past several days that warrant your serious consideration. Please read Interim Town Manager Jim Johnson's email sent out Wednesday evening at about 5:30 p.m. I have also attached a document memorializing this situation. The other attachment is referenced in both the email and the "Packet Update."
As you review this material, please keep in mind that you, as Town Meeting Representatives, will be asked to decide whether or not Town Meeting should proceed as scheduled on Monday night, or whether the circumstances call for a one week postponement. The Town will also be delivering a hard copy of this information to all Town Meeting Representatives today, Friday, October 17, 2014.

From: "Johnson, Jim" <>
Sent: Wednesday, October 15, 2014 5:36:11 PM
Subject: Town Meeting Update
Hello All,
As you may know the booklet that outlines the Finance Committee’s recommendations was not distributed seven days prior to Town Meeting to each resident per Chapter 88-3 of the Town of Walpole Bylaws. This error occurred because the distributor that prints and mails out the booklet sent all 9,133 copies to Maine. The distributer has apologized and provided the Town with a detailed explanation and apology in writing. (attached)
After learning of this error it was decided that the Town would send out a reverse 911 call to all residents to let them know that there was a mailing error and that the warrant and Finance Committee’s recommendations are available on the Town’s website. That notice was provided six days prior to Town Meeting, as soon as the mailing error was discovered.

This error created concern because Chapter 88-3 specifically states that, “The Finance Committee shall act, on all articles on the Warrant, as an advisory committee to the Town and shall report in writing its recommendations. These recommendations shall be distributed to each residence not later than seven days prior to each Annual or Special Town Meeting.”

After speaking to Bond Counsel and Town Counsel regarding this matter, both agreed that the conditions outlined in the Town By-laws and Charter are not requirements that prevent Town Meeting from lawfully convening and ruling on the Warrant as scheduled on Monday, October 20th , however both did specifically note that whether or not to proceed with Town Meeting on October 20, 2014 is policy question, which, ultimately, is up to Town Meeting to decide. I have attached Town Counsel’s opinions for your review and consideration.
In addition, Chapter C. Article VI, section 6-5 of the Charter requires that, “The Finance Committee shall hold one or more public hearings on the proposed budget not less than three (3) days prior to the session of the Town Meeting at which it is to be submitted for adoption.” At this point, I understand that the Finance Committee intends to proceed with the public hearing tonight.
The Board of Selectmen will hold a public meeting on Thursday, October 16, 2014 at 6:45PM to discuss this matter and determine whether the Selectmen will make a recommendation to Town Meeting on whether or not to proceed with the meeting on October 20, 2014 or to adjourn so that all notice requirements have been satisfied. Town Moderator Jon Rockwood told me that he plans to attend the Selectmen’s meeting.
Ultimately any decision to adjourn Town Meeting will be up to Town Meeting, but I anticipate that the Town Moderator will indicate his recommendation tomorrow night as to whether or not he will request Town Meeting to vote to adjourn Town Meeting on October 20th.
This is an unfortunate situation given all of the very important matters that are being presented to Town meeting; however, none of us can go back and undo the past. We are going to have to move forward and deal with this situation.
Please feel free to call or email me with any questions.
Jim Johnson
Interim Town Administrator
Town of Walpole
135 School Street
Walpole, MA 02081
So, the situation is this. The clear provisions of the Charter, albeit due to the acts of a third party, were not met in leading up to this Town Meeting. Some people had not received the mailing (the document containing the Finance Committee recommendations) even as of late yesterday.
Whether or not Town Meeting convenes and goes forward on Monday night is your decision. Neither I nor the Board of Selectmen can unilaterally declare the Meeting to be postponed. Therefore, as our first order of business on Monday night, provided we have a quorum, I will entertain a motion from an RTM to postpone the meeting for one week, until Monday, October 27, 2014. If the motion is seconded, there will be a debate regarding whether to postpone for one week, or whether to go forward with Town Meeting there and then on Monday night. The vote to postpone requires a simple majority to pass.
To reiterate, I will be present at the Walpole High School gym on Monday night, as will the Town Clerk, the Board of Selectmen, the Town Administrator. To participate in the debate and vote of whether to go forward, you should be present as well.
At its meeting last night, the Board of Selectmen voted to recommend to Town Meeting to postpone the meeting. I agree with the vote. The Board and I are concerned that essential information was not in the hands of our citizens in the time frame required by the Charter. Again, these are recommendations. The decision of whether to proceed on Monday October 20, 2014 or on Monday, October 27, 2014 is yours to make.
Please contact the Board of Selectmen or me with any questions you may have. Jim Johnson will be available today (Friday) as well. I am around this weekend so feel free to contact me via email, and my cellphone number is (508) 468-5771.
Thank you for your attention to this important matter.
**************************Referenced Material to Follow******************************************

Neoprint INC's Response and Apology
Sent: Wednesday,October 15, 2014 11:07 AM
To: Johnson,Jim
Subject: Shipment Problem
Dear Mr. Johnson
On behalf of Neoprint Inc.I would like to apologize for the delayed shipment of the Town of Walpole books.Our  delivery driver mistakenly dropped this off at the wrong facility. In the many years Neoprint/Sullivan brothers have been doing business with the town of Walpole this has never happened. I would like to assure you that this will never happen again. Again Iam terribly sorry for the oversight and any inconvenience this has caused. If there as anything I can do on my end to make it up to you and your constituents please let me know.
Rob Spector
General Manager  I Neoprint INC

Town Meeting Legal Opinion from Town Counsel October 15,2014
You requested an opinion regarding the notices provided for the October 20, 2014 Annual Fall Town Meeting.  I understand the Town Meeting Warrant was properly posted.  Walpole Charter §2-10(E) requires that the Town Clerk shall notify Town Meeting Representatives of the time and place of the annual town meeting by mail at least seven days in advance of the meeting; however, the notice was not sent by mail by the Town Clerk seven days in advance, but the Warrant (which provided the notice) was delivered to each Town Meeting Representative more than seven days in advance of the October 20, 2014 Town Meeting.  Walpole General By-law §88-3 requires that the Finance Committee's recommendations shall be distributed to each residence not later than seven days prior to an Annual Town Meeting; however, due to a problem with the Town's contractor, the distribution by the contractor did not occur until five days prior to the October 20,2014 Town Meeting, but each residence was provided with actual notice six days in advance of the October 20, 2014 Town Meeting of the availability of the Warrant and the Finance Committee's Recommendations on the Town's  website.  
Neither the Charter nor the General By-laws contains a directive that Town Meeting shall not act on the Warrant if one or more notice deadlines are not satisfied.  Since a significant borrowing article is proposed on the Warrant, we inquired of Bond Counsel as to whether Bond Counsel would have a concern with regard to the lack of adherence to the notice deadlines and Bond Counsel indicated that the notice requirements are directory not mandatory under the Young v. Town of Westport
case discussed below and the notice issues would not present a legal impediment.
In my opinion, despite the fact that both the Charter and the General By-law set forth notice provisions that contain the word "shall," the use of the word "shall" is merely directory and not mandatory; and, therefore, it is my opinion that Town Meeting may lawfully proceed to consider and act on the Warrant on October 20,
Please note, however, that, while it is my opinion that Town Meeting lawfully may act on the Warrant on October 20, 2014, whether or not to do so is a policy question that, ultimately, rests with Town Meeting.
If the Board of Selectmen were to deem it prudent, in order to promote transparency and informed participation, then the Board could vote to recommend to the Town Moderator and Town Meeting that Town Meeting vote on Monday, October 20, 2014 to adjourn the Town Meeting to a new date and time, a new date and time that would allow the full notice to occur.  In addition, of course, the Town Moderator could request Town Meeting to make such a motion on his own, without such a recommendation; and, of course, Town Meeting could make such a motion on its own with or without such a recommendation and with or without such a request from the Town Moderator, as the ultimately decision on whether to proceed rests with Town Meeting.  Any such a motion at Town Meeting to adjourn would require a second and then a favorable majority vote to be approved.
There is a significant body of case law interpreting the word "shall," in certain circumstances, as merely directory rather than mandatory, particularly where the statute is directed at public officials and refers to a particular time for action and where failure to comply with the directive has no express penalty or other consequence for noncompliance and where there is no harm caused to the rights of any individual by failure to comply, as in the instant situation.  In Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 157 (1976), the Supreme Judicial Court stated that where the word "shall" appears in a statutory provision that is "only a regulation for the orderly and convenient purpose of public business," it is directory, and not mandatory.  The Appeals Court noted that it is established law that, "Although 'shall' is commonly a word of imperative obligation, it does not inflexibly have that signification."  Wannan v. Wannan, 21 Mass. App. Ct.
80, 82 (1985).  In Citv ofBoston v.
A statute 'imperative in phrase,' prescribing the time or manner of performance by a public or corporate officer  ... is ordinarily construed as a merely directory provision for the orderly and convenient conduct of business, and compliance with it is not a condition of the validity of the act.
Furthermore, the case of Young v. Town of Westport, 302 Mass. 597 (1939) supports the authority of Town Meeting to proceed in the current circumstances.  In Young, the Town's  Finance Committee failed to hold a public hearing on the sole article in a special town meeting warrant and the plaintiff contended that the Town Meeting could not appropriate funds under the article as the Finance Committee did not "grant any public hearing" because the local bylaw stated that, "Whenever the warrant for any town meeting contains an article or articles under which an appropriation or expenditure of money or the disposal of any property of the town may be made, the finance committee shall consider said articles after giving one or more public hearings thereon and shall report its recommendations to the town meeting."  Young, 302 Mass. at p. 598.  The Supreme Judicial Court ruled that the failure of the Finance Committee to hold a public hearing and report its recommendations to Town Meeting did not preclude Town Meeting from acting because the Town did not adopt a bylaw that prohibited Town Meeting from considering a matter without the Finance Committee's recommendation and report.  Young, 302 Mass. at p. 600.  As a result, the Supreme Judicial Court held as follows:
The matters for consideration were properly before the meeting by virtue of the warrant, and the failure of the committee through inadvertence or inability to hold a public hearing did not prevent the voters from deciding the articles contained in the warrant.. The instant by-law in form and in substance was directory to the finance committee and was not mandatory upon the town. The omission of a public hearing by the finance committee did not invalidate the action taken at the town meeting. Young, 302 Mass. at p. 600.
In this case, the Town's Charter and Bylaws impose notice and reporting requirements on the Finance Committee that are similar to those in the Town of Westport Bylaw and similarly do not expressly prohibit Town Meeting from acting on warrant articles if the notice requirements and distribution requirements for the Finance Committee's Recommendations are not satisfied. As a result, it is my opinion, that Town Meeting lawfully may act upon the Warrant on October 20, 2014.
Again, as noted above, while it is my opinion that Town Meeting lawfully may act on the Warrant on October 20,2014, whether or not Town Meeting deems it prudent to do so is a policy question that, ultimately, is for Town Meeting to decide.
You asked whether Town Meeting could vote on October 20, 2014 to adjourn the Town Meeting to a new date and time, if the Town Meeting does not have a quorum available to vote on articles.
In my opinion,Town Meeting,if it does not have a quorum on October 20,2014,Town Meeting to vote on articles, lawfully may vote to adjourn to a new date and time, provided that at least two Town Meeting Representatives are present and vote unanimously or at least three Town Meeting Representatives are present and vote by majority vote to adjourn.
You asked for an opinion regarding whether the Finance Committee  should go forward with its public hearing that is scheduled for this evening and,if it does and if Town Meeting is delayed, whether the Finance Committee would be required to hold another public hearing after the Finance Committee's recommendations have been physically distributed to Town residences.

In my opinion, the Finance Committee may lawfully proceed this evening with its scheduled public hearing and, if Town Meeting is delayed, the Finance Committee would not be required to hold another public hearing. The Finance Committee, of course, would have the discretion to choose to hold another public hearing, once the Finance Committee's recommendations have been physically distributed, if the Finance Committee determines that that would be prudent and it votes to do so.

If you have any questions, please feel free to contact me. Thank you.


Ilana M. Quirk, Esq.


Bond Counsel's Legal Opinion

Pursuant to Section 88-3 of the Town bylaws, the written finance committee recommendations on the articles for a town meeting "shall be distributed to each residence not later than 7 days prior to each Annual or Special Town Meeting." We have been advised that the fall annual meeting is scheduled for Monday, October 20, and due to an error on the part of the printing contractor, the warrant and finance committee report for the meeting is not likely to be delivered to each residence until October 16 or 17. You have asked whether the failure to so deliver the finance committee report within the 7 day time period would invalidate a borrowing voted at the town meeting as
scheduled. The case of Young vs. Westport, 302 Mass. 597 (1939) addresses a challenge to an appropriation made at town meeting where the finance committee failed to hold a public hearing as required by bylaw. The court did not invalidate the action at town meeting, stating that, "The committee ... acted only in an advisory capacity. The citizens were not required to accept its report or to adopt its recommendations." The court also stated that the "matters for consideration were properly before the meeting by virtue of the warrant and the failure of the committee through inadvertence or inability to hold a public hearing did not prevent the voters from deciding the articles contained in the warrant." The Town's failure to strictly abide by its bylaw regarding the time period for delivery of the report is similar to the failure of the Town in the Young case to hold a public hearing on the articles.  In both situations, the Town did not adhere to the procedural requirements of its Finance Committee bylaw. We feel the ruling in the Young case is directly on point in this matter, and that the bylaw is directory to the finance committee. As such, the failure to deliver the warrant and finance committee report to the residences 7 days prior does not prevent the Town from acting on the borrowing articles contained in the warrant. In this answer, I assume that the Town has complied with the warrant posting and publication requirements contained in Section 219-1 of the Town bylaws and the notice to town meeting members required by Charter Section 2-10(E).

Please let me know if you have any further questions on this matter.

Brenda M. McDonough


Edwards Wildman Palmer LLP