Column: A Moral, Political Mistake in Hartford

  • Hartford High School sophomore Clara Posner and freshman Deveon Martin run a 270-yard timed lap of the school's hallways during the indoor track team's practice in White River Junction, Vt., on November 24, 2015. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

For the Valley News
Tuesday, January 30, 2018

Hartford — The School Board made a correctable mistake last week when it voted unanimously to reject a citizen petition to appropriate $50,000 toward the design of an affordable outdoor track. Whether or not it was a legal mistake will be up to the courts. There’s no doubt it was a moral mistake. More than 600 signatures — about half the number of people who voted on last year’s school budget and far more than required for citizens to call for a vote — were collected in just 10 days by 50 or more of their fellow residents. The board chair had asked the nonprofit Friends of Hartford Track to demonstrate support for the proposal by way of petition, and the group delivered.

In Hartford, the only check citizens have on their boards is the power to put questions to Town Meeting by way of petition. It’s not like a city council form of government, in which the mayor is elected, neighborhoods elect representatives to the council, and the council and mayor decide all money matters. Hartford’s boards are obligated to respect this right of petition in the Hartford charter and other areas of state law, and to interpret the exercise of that right generously. When they fail to do that, they do what only government bodies are capable of doing: violating the First Amendment right to petition.

When the School Board rejected the petition, it subverted the moral foundation of the town meeting form of government, where the electorate, acting as a whole at Town Meeting, is the highest local authority. Rejecting the petition after a closed executive session to discuss the matter only compounds the moral error. Board members failed to put on the agenda that they were going to consider the petition, and failed to put into their motion the kind of detail Vermont’s open meeting laws demand — specific detail that explains why “premature public knowledge” of whatever legal advice it was about to receive would place the board at a “substantial disadvantage.” Setting aside those legal technicalities, you have to wonder why the School Board, presumably dedicated to education, would have missed such a tremendous opportunity to deliver a real-time civics lesson, much less what sort of “substantial disadvantage” it might have with more than 600 of the citizens it serves.

But you know how it is with lawyers: If you ask them, “Is there any way we can quash this petition?” you will get a different answer than if you ask them, “What would we have to do to legally implement the will of Town Meeting if these petition articles pass?” The narrow technicality the attorney found for the board is that it would be illegal to have a committee manage the design effort — a committee that would be just like the Town Hall Renovation Committee, which nobody considered illegal and which guided that effort to an on-time, on-budget, highly praised, award-winning result.

So the School Board decided not to modify the petition’s clauses and let a vote proceed. The members now say they have no right to change what is in a petition, but back in September 2014 they did exactly that with a petition to put a bond on the November 2014 ballot. In that case, the dispute was over the number of signatures required. The School Board deemed the 350-signature goal of the town charter was correct, accepted the petition, and then put it on the ballot — and changed the wording while doing so. A majority of that School Board is still serving.

Whatever a judge might decide about the relationship between Hartford’s charter, with its far more generous petition law, and the mix of state laws the School Board counsel cites, which themselves have some broad statements concerning what the electorate can take up at Town Meeting, it is plain that the First Amendment right to petition has been trampled. A petition that on its face conformed to standards, and that drew upon the common understanding of the town’s citizens as to what their charter says and how special projects can move forward, has been denied without adequate warning or discussion. Morally, that’s wrong.

Interestingly, the petition was directed to the town clerk, not the School Board. In the Hartford charter, we traded our authority to collectively decide at Town Meeting the exact wording of what would be voted on, and then vote in an open session, in return for the unfettered right to petition the town clerk to put matters directly on the ballot. This, paired with the requirement that all public questions be done by Australian ballot, means that nothing of consequence will be considered without a full opportunity to vote. Hartford citizens can and do read their charter such that the town clerk, who for such purposes is also the clerk of the school district, is duty-bound to add petitioned public questions to the ballot and the School Board has no authority over the matter. If that reading is incorrect, Hartford no longer has a genuine town meeting form of government, but instead a mockery of self-governance in which a handful of people have complete control of what gets put to vote. It may as well become a city with a mayor and council. Direct democracy? Forget about it, Hartford. Talk to the hand.

A better way for this to play out is to allow the vote to go forward. If it fails, it’s done. A third generation will pass through the halls of Hartford High School with no track facilities. If it passes, the board will have to figure out how best to come up with the money and how to charge the committee such that it’s all done legally. Arguments that a committee can’t be charged with responsibility for this are bunk. The district would be responsible for coming up with guidelines to effect the will of Town Meeting, the same way the Selectboard produced a multipage document guiding the Town Hall Renovation Committee. That’s not the sort of thing that can be put into a petition; that’s the work of the board later in the process. By proceeding this way, the School Board would avoid spending money fighting its own citizens in court. Instead, the money ought to be spent on getting legal guidance on how to proceed to accomplish a goal established by school district meeting, the board’s ultimate local authority.

This all makes so much sense that you have to wonder what is going on. Nobody on the board or in the superintendent’s office had the common courtesy or democratic fair play decency to call, email, text or otherwise make sure that those leading the petition drive knew the School Board would be taking up the matter, much less discuss what might be problematic and how the language might be changed. The agenda change wasn’t even posted to the Hartford Listserv, something the superintendent does all the time. Compare this approach to, for example, alerting folks directly, inviting one or more of them to listen to what the attorney had to say, and attempting to find some common ground before the meeting. The board’s approach was a distasteful exercise in petty legalities.

It needs to be said that the petition draft was sent to the chair on Jan. 1, the day after the chair told us this would need to be done by petition, with a request that it be reviewed by district counsel. We were trying to avoid the situation all parties now find themselves in, and also to conform with the advice on the secretary of state’s website. Since there can’t be any adversarial relationship between citizens acting at town or school district meeting and the School Board, because the board represents the meeting, this should have been met with a simple yes. Instead, the chair waited almost four days before rejecting the request. His denial of the request was not shared with board members; one of them asked recently why we had not requested the assistance of the district legal counsel in formulating the petition!

The Friends of Hartford Track then sought out experienced municipal law attorneys, only to be rebuffed by each because they had represented the school district or town in the past, were currently of counsel, or — remarkably — said, “my business is representing towns and school districts, not those who are on the other side.” As if citizens acting in the context of Town Meeting could be “against” the boards who serve them.

This took another four days. With time dwindling, we went with the articles as drafted.

Starting on Jan. 9, and by the deadline on the 19th, not only had the charter’s 350-signature requirement for such petitions been met, the 5 percent state requirement for appropriation petitions had been exceeded, as well. Dozens of parents, children and members of the Friends group fanned out around town collecting those signatures in a notable commitment of civic energy in the exercise of the fundamental right to petition. Some of those involved were kids with a stake in the outcome. Now, the lesson for them is that their voice will not be heard. So much for one of the benefits of living in a small town. No wonder they’ll be moving to Boston as soon as they can.

​I believe this was a political decision, not a legal one. It isn’t hard to guess what the political reasons might be: concern over a possible future conflict between a track bond and a bond to fix the Wilder school; concern over having to explain why $50,000 was being spent on a track when the budget was cutting services and taxes were going up; concern by board Chairman Kevin Christie about giving opponents something to use against him when he runs for re-election as state representative in November; concern over causing embarrassment to the superintendent and board if it turns out that a better, less costly way forward was there all along; and concern that having it on the March ballot might cause the budget to fail. Denying a valid petition for political reasons is exactly why we have a First Amendment right to petition — to make that kind of government action illegal everywhere in the United States, from the federal government down to the local school district.

Politically, this is missing the forest for the trees. The forest is our shared self-governance under the town meeting model, which puts the primacy on the citizens acting together as a whole instead of acting through representatives. Under that model, whether or not a charter or state law provides exact and specific guidance, boards must not quash widely supported petitions using undisclosed legal technicalities when it is evident that the petitioners have tried their best to articulate a reasonable public question. In fact, the boards arguably have a duty to their citizens to provide assistance in these situations.

The politically motivated actions of the School Board are patently against the concept that every voice gets heard and every vote gets counted, and, at least within the confines of the town meeting form of government, the right to petition means the right to petition effectively.

F.X. Flinn, of Quechee, has been assisting the Friends of Hartford Track since 2012. He has served on Hartford’s Selectboard, on two charter committees, and currently chairs the Town and School Meeting Committee.