Legal snarl envelopes Tiverton town council

Charter complaint process invalidated

By Tom Killin Dalglish
Posted 2/22/19

TIVERTON — The hiring of a town solicitor by the newly-elected four-person Tiverton town council majority has triggered an unintended consequence: the town's charter complaint process, an occasional but cherished remedy sought by citizens unhappy with actions by town officials, may now be a thing of the past.

A municipal court decision last Tuesday appears to have invalidated charter complaints.

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Legal snarl envelopes Tiverton town council

Charter complaint process invalidated

Posted

TIVERTON — The hiring of a town solicitor by the newly-elected four-person Tiverton town council majority has triggered an unintended consequence: the town's charter complaint process, an occasional but cherished remedy sought by citizens unhappy with actions by town officials, may now be a thing of the past.
A municipal court decision last Tuesday appears to have invalidated charter complaints.
As a result, the town is now deep in the weeds, puzzling over the possible need to hire additional lawyers to solve a problem that began last December when the newly-elected council majority hired a new town solicitor.
Municipal Court Judge Robert H. Humphrey, in a decision announced Tuesday, February 19, rejected a Section 1211 Town Charter complaint filed by Michael S. Burk, that challenges the method and manner of the appointment of Town Solicitor Giovanni Cicione on December 27 by the new council majority (Donna Cook, Rob Coulter, Nancy Driggs, and Justin Katz).
The rejection was based not on any of the facts alleged in Mr. Burk's charter complaint, or whether the December 27 appointment was proper or improper.
Instead, in a written decision, Judge Humphrey rejected the charter complaint because, he said, state laws creating the municipal court do not give him the power to rule on charter complaints, and also, he said, he's disqualified from ruling on the matter due to a conflict — because the council is the body that appointed him.
Judge Humphrey has served as Municipal Court Judge from December 1, 2003 to November 30, 2005, and was re-appointed by the council on February 26, 2018.
"While I fully respect Judge Humphrey, I believe this decision is an abdication of the responsibility of the Municipal Court under Tiverton’s Town Charter," Mr. Burk said about the judge's ruling., on Friday.
"The Charter clearly states," he said, "that when a majority of the Councilors are named as defendants to a Charter violation, it is the duty of the Municipal Court to be the arbiter of that complaint. Previous Charter violations have been heard by prior Tiverton Municipal Court judges without any question as to the jurisdiction of that Court," Mr. Burk said.
The judge's reasoning
Section 805 of the town charter creating the Municipal Court, said Judge Humphrey, "only grants upon the Municipal Court the jurisdiction and duties as provided in RIGL 45-2-34, which does not confer upon the Municipal Court the power to rule on charter complaints."
In addition, said Judge Humphrey, "the Town Charter creates an inherent conflict," which leads to his disqualification from ruling on the matter.
The complaint against the majority of the council, he said, must be filed by the town clerk with the very same officials who appoint the municipal court judge, .
The charter, wrote Judge Humphrey in his decision, says "the Municipal Court Judge shall be appointed by the Town Council."
"Therefor, it would be inappropriate," he said, "for this Court to hear and determine a complaint against a majority of the Town council. This ruling is supported by Judicial Canon 3(E)(1) which states 'a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality may reasonably be questioned,.. '."
Judge Humphrey concluded his decision with these words: "this Court lacks the subject matter jurisdiction to hear this Complaint and is disqualified from hearing the Complaint. As a result, this complaint is hereby remanded to the Town Clerk."
Next move?
"I really have to think about who I can talk to about this," said Town Clerk Nancy Mello in whose hands the matter now rests, when responding to the judge's decision. Since it is the method and manner of the appointment last December 27 of Town Solicitor Giovanni Cicione (and his firm) that forms the basis for Mr. Burk's charter complaint in the first place, it is possible that Mr. Cicione or his firm may not be available to provide legal advice to Ms. Mello.
Mr. Burk's reaction
Mr. Burk's charter complaint alleged various improprieties in the selection, interviewing, hiring, and openness of the process by which the newly elected four council members named in the charter complaint undertook to hire Town Solicitor Giovanni Cicione last December. The four, elected as a Tiverton Taxpayers Association slate of candidates in last November's election, now constitute a majority of the council.
"I followed the remedies as outlined in the Charter," Mr. Burk said. "It is well past the time-frame for my complaint to be heard, and I call upon the Clerk to ensure it gets heard expeditiously in the lowest legal setting possible."
"It is also imperative," hesaid, "that none of the Councilors who are the subject of this complaint, nor the current Town Solicitor, or his firm, whose appointment is the basis for this complaint, involve themselves in determining how this complaint is now legally managed. That is within the sole authority of the Town Clerk."

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