Commissioners, Assembly At Odds Over Question 6

When she was re-elected back to the Barnstable County Board Of Regional Commissioners in 2021, Sheila Lyons said she realized the relationship between the commissioners and the county’s assembly of delegates had changed.

 “I came back and I did not understand what happened to the assembly,” said Lyons, who first served two consecutive terms as county commissioner from 2008 to 2016. “Because all of a sudden they were a bicameral branch of checks and balances. ‘We can hold you accountable. We can spend money.’ No, that never was and never can be unless you want to go to a charter change.”

 The difference in opinion between the two government bodies over the assembly’s role in county government will go before Cape voters at the Nov. 5 general election.

 If approved, Question 6 on the November ballot would amend the county charter to give more clarity to the role of the assembly’s standing committee on finance. It would also authorize the assembly to “increase, decrease, add or omit items to the annual budget” proposed by the commissioners, and allow delegates and commissioners “to introduce a request for a supplemental appropriation ordinance” after the adoption of the fiscal year operating budget. 

 Unlike other questions due to appear on next month’s ballot, Question 6 will only go before voters in Barnstable County.

 But the question has proven divisive. Commissioners on Oct. 9 voted against supporting the question, arguing that it represents an attempt by the assembly to assume some executive power from the regional board. They also say it is not in the county’s best financial interest and will ultimately lead to additional legal complications if it passes. 

Assembly members, meanwhile, counter that passage of the question is needed to bring more clarity into the assembly’s role in the county’s budgetary process.

 “The bottom line is it’s a good government measure,” said Mary Chaffee, Brewster’s delegate to the assembly. “There’s no downside of having government processes that are very clear for all parties.”

 The three-member board of regional commissioners represents the executive branch of county government, while the assembly is composed of 15 members, one from each town on the Cape, that perform the functions of the legislative branch.

County Commissioner Mark Forest of Yarmouth likens the commissioners’ role to that of the select board in local town government. Similarly, the assembly operates analogously to town meeting, he said. 

The county administrator prepares a budget each fiscal year for the commissioners to review. With their approval, the budget undergoes review from the assembly’s standing finance committee before going before the full assembly, which can weigh in and make changes before the budget is finalized.

“The current process that exists is very similar to what happens with the towns,” Forest said. “And generally it works. There are not really any problems.”

“It’s too small of a government for 18 people to have control,” Lyons added.

 But disagreements between the two bodies over the assembly’s role in overseeing county finances have grown in recent years. Randi Potash of Chatham, the assembly’s deputy speaker, said efforts to prepare the ballot question began when the commissioners and the assembly began discussions on how to use funding awarded the county through the American Rescue Plan Act during the COVID-19 pandemic.

 Potash said the assembly attempted to put forth an ordinance relative to how some of the funding might be used, but the commissioners said they were not bound to follow it because they saw the assembly’s role as “advisory.”

 “And think about that,” Chaffee said. “What if the White House said to Congress ‘You are merely an advisory committee?’ Well, Congress isn’t, and neither is the assembly.”

 Lyons last week upheld the commissioners’ view, citing previous legal opinions that have been sought regarding the assembly’s standing.

 “We’ve had outside special counsel, our own county counsel, and they all told them you’re a financial advisory board.”

 But the assembly made the case that it is not an advisory body under the charter at a meeting 18 months ago between Potash and Assembly Speaker Patrick Princi, Forest and representatives from the county’s legal counsel, KP Law. From there, the assembly began working toward putting a question on the ballot for the upcoming general election to clarify the role of the assembly’s various subcommittees, including the finance committee, in county government.

 The county charter predates the formation of the assembly. Before it, an advisory finance committee composed of non-elected officials from across the region served to give the annual operating budget oversight and review. 

 “They would gather during the budget period and review the budget, make sure there was no fraud, make sure [the county] was investing right,” Lyons said.

 Today, however, the standing committee on finance includes seven of the elected delegates, Potash said.

 “Every single time there’s any monetary decisions to be made, the finance committee has a meeting and it advises the full assembly.”

 In August 2023, the assembly voted to draft an ordinance to put the question on the November ballot under Section 9-1 of the county charter. Potash said the provision allows the assembly to put forth amendments to the charter without going through the county legislature as long as the changes “don’t change the structure or anything to do with the election of the assembly.”

Potash said the commissioners had the opportunity to weigh in on the proposed ballot question, but instead chose to ignore it. 

“If they choose to ignore an ordinance, it becomes the rule,” she said. “And they chose not only to ignore it…but they never discussed it, and they never came to any of the numerous public hearings that we had on this.”’

 The commissioners see Question 6 as an attempt by the assembly to “bypass” the county’s charter review process. The charter, which is subject to review every five years, is due to be reviewed again in 2025. 

 The assembly was advised by the county’s legal counsel that the changes sought in the ballot question should go through charter review, and that passage of the question could have “unintended consequences,” Lyons said.

But Chaffee said the ballot question represents “the smart approach” that gives delegates the best means of representing their towns. A ballot question is also the quickest way to break the county out of a cycle of wasteful spending surrounding questions over the assembly’s function, Potash said. 

“We’re tired of them wasting money on legal opinions,” she said of the commissioners. “We still have two more budget cycles, so we just want to stop the bleeding. Stop wasting money on counsel. These are people’s hard earned dollars that they’re wasting just to try and say the charter doesn’t say what it says.” 

 Of particular concern to the commissioners is the authority Question 6 would give assembly delegates to request additional appropriations from surplus funds beyond spending outlined in the adopted budget. In a statement released after the commissioners’ Oct. 9 vote in opposition to the question, the board said the question is “designed to increase the spending power of the assembly for pet projects, pay raises, and the hiring of more staff.”

 “If the voters pass this proposal, we are concerned about spending down our reserves and missing out on an upgrade to a AAA bond rating,” Ron Bergstrom of Chatham, who chairs the board of regional commissioners, said in the statement. “An upgrade, which is clearly within our grasp, will lower the cost to borrow money for important infrastructure and programs and put the county on solid financial footing.”

 Forest said when he joined the board in 2021, he noticed “a significant level of supplemental spending activity” over the course of many years. In one year, he said, there were 24 requests for supplemental appropriations, which he said is evidence of “bad budgeting.” Supplemental funds are typically designed for emergency use and one-time appropriations, he said.

 “You will never see a select board call for 24 separate spending measures or call for 24 special town meetings,” he said.

 In their Oct. 9 statement, the commissioners say the assembly wants greater say in the budget process to help support “pet projects,” an accusation that delegates push back on. Potash said those “pet projects” are projects that their constituents need funding for.

 And despite the commissioners’ concerns, Potash said the assembly already has some authority over how supplemental funds are used under the charter.

 “Not only does the assembly have a say, [the commissioners] actually have to get 67 percent of us to say OK before they access it,” she said.

 In a separate statement Oct. 10, the assembly said that Question 6 would still keep “checks and balances” over supplemental spending in place if approved. Both the commissioners and the assembly would have the opportunity to weigh in on any supplemental requests, they said.

 Forest and Lyons both voiced concern with the legal implications that would come from the passage of Question 6. Forest said the question as written is in violation of Chapter 35, Section 28B, the provision of state law that outlines the powers of the commissioners and assembly regarding budgets and spending. 

 “Even if they amend the charter, state law usually prevails in these situations,” he said. “It almost immediately provokes a legal controversy.”

 But the assembly contends that the question is exempt from the provisions of Chapter 35 because the county budget is governed by home rule charter, not state law. The assembly also argues that the question’s language has been approved by both county counsel and the Secretary of the Commonwealth.

 “For any of the commissioners to ever say this is not a legal application, that it shouldn’t be before the voters and didn’t have public hearings, is a boldface lie,” Potash said.

 While the assembly hopes that passage of Question 6 will help the county avoid future legal spending, commissioners say passing the question will only lead to more of it. 

“We’d be in this sort of legal quagmire for at least a couple of years,” Forest said.

 Conversely, Potash said that should the question fail at the polls, the assembly will move forward with the requested changes through the upcoming charter review process.

 “We are united,” she said of the delegates. “All 15 towns want their constituents to know that if they need something more and that the services aren’t really up to par, that we can push forward measures as long as we make it clear where the money would be coming from.”

 But however things unfold on Nov. 5, Chaffee said she wants to see the assembly and the commissioners both get back to the business of efficiently operating county government. It’s a system of government she said has been proven to work, even if the past few years have been difficult.

 “Barnstable County government does a good job,” she said. “But the commissioners’ attempts to wrest all government power for themselves is interfering with how efficiently county government is operating now. That’s what the assembly wants to change. We want to get back to work.”

 Looking ahead, Lyons said that the charter review remains the best option for smoothing out any questions or disagreements that exist between the two governmental bodies. She favored the creation of an independent panel to “really look at the charter and say what needs to be there, what needs to be clarified, what needs to be removed.”

“The only thing that’s going to shake this out is open charter review with the public’s involvement,” she said.

“We disagree on Ballot Question 6,” Potash said. “It’s healthy for two branches of government to assert their positions. There’s nothing wrong with different opinions, and the voters will ultimately decide this one.”