Council dismisses Katz charter complaint


TIVERTON — After a three-and-a-half public hearing, the town council Monday night unanimously dismissed a charter complaint brought by Justin Katz that charged Town Clerk Nancy Mello with violating the town charter.

Mr. Katz alleged that last November 26 Ms. Mello had wrongly dismissed a charter complaint brought by Donna Cook, in which Ms. Cook had said that on October 25, while in the office at Fort Barton School, she noticed "three campaign buttons on the secretary's desk. They were from Tiverton 1st, a political action committee."

Believing the buttons to be campaign material intended to influence the upcoming election, Ms. Cook alleged that the school department was in violation of the town charter prohibition against the use of school property for campaign purposes.

Ms. Mello conducted what the council Monday night concluded was an appropriate investigation of Ms. Cook's complaint, and dismissed it, saying that there was no intention on the school departments' part, or that of the secretary, to violate the charter.

During Monday's hearing, School Superintendent William Rearick's directive to all the schools reminding them of the prohibition — sent out during Ms. Mello's investigation — was presented as evidence of the lack of knowing intent to violate the charter.

To be found in violation of the charter, the act objected to must be found to have been committed knowingly or intentionally.

Mr. Katz took issue with Ms. Mello's dismissal, saying that she lacked the authority under the charter to investigate the Cook complaint. He said  that the town clerk should have forwarded Ms. Cook's complaint to the council for a public hearing. He also said Ms. Mello's investigation was "cursory" and "arbitrary.

"If you determine that this stops here ... the town clerk will have incredible power," he said, adding that such complaints are the only way citizens have to enforce the charter other than an election.

He argued that, by virtue of Ms. Mello's dismissal, Ms. Cook was denied "the opportunity to present evidence to a public body authorized to determine the validity of her complaint."

Town Hall was packed for Monday's hearing. The town council was represented by special counsel Matthew Oliverio. 

Ms. Mello was represented by Town Solicitor Andrew Teitz. If found in violation, Ms. Mello faced a possible fine of not more than $300 and possible loss of office.

Mr. Katz represented himself.

"The question is," he said, "whether the town clerk followed the charter of violated the due process rights of Donna Cook."

"It's your burden," Mr. Oliverio told Mr. Katz, "to establish there was a knowing violation by Ms. Mello."

Mr. Katz asked for an opportunity too conduct discovery, possibly by a deposition. Denied. He asked for a continuance, which was denied. He asked for a bifurcated hearing, which was denied. He objected to Mr. Teitz's representation of Ms. Mello on ethical grounds (a conflict, he said), likewise rejected, Mr. Oliverio saying there was no conflict.

Mr. Katz presented the council with a blizzard of exhibits which had to be copied before they could be distributed to council members.

Mr. Teitz did the same, except his exhibits were alphabetized. More copying ensued.

One of the charges Mr. Katz made was that Ms. Mello did not find the presence of the buttons to be a knowing violation of the charter. He said she would have found the violation "knowing" if she had availed herself of the evidence Mr. Katz offered to give her. That  evidence included references to the presence of buttons in other schools, as reported to him by people who said they's seen them but who Mr. Katz said didn't want to be identified.

Also referenced during the hearing was a recording former town council David Nelson had made of the Fort Barton secretary on whose desk the buttons had been spotted. Mr. Nelson did not appear at the hearing, and his recording was not played.

As the evening wore on, Council member Jay Lambert asked m" Isn't this in fact process over substance."

A direct pass-through by the town clerk of charter complaints, directly to public council hearings, and without any investigation at all by the clerk, "could lead to a stream of frivolous complaints," said Mr. Teitz. "It would be an absurd result if all the clerk could do is place the complaint of the council agenda."

"I believe it's absolutely clear that she had the duty to investigate, and she did investigate," he said.

No councilor supported Mr. Katz's position.

Councilor William Gerlach said, "it's my expectation that due diligence would have been done by the clerk before the complaint comes to the council. I cannot fathom that she would knowingly violate the charter. I do not feel that with the evidence presented there was a knowing charter violation."

Councilor Joe Arruda agreed, saying, "I don't think there's sufficient evidence that Ms. Mello violated the charter." Mr. Lambert said the same.

Council member Joan Chabot said, "I think Ms. Mello worked to the best of her ability to resolve this charter complaint. I don't think she knowingly violated the charter." Councilor Denise DeMedeiros said the same.

Councilor Brett Pelletier said, "We want the clerk to do something, it makes sense to have someone do due diligence, to do the work."

Council President Ed Roderick said the actions of Ms. Mello, in dismissing the Cook complaint, "do not rise to the level of a true charter violation."

On a motion by Mr. Arruda, seconded by Ms. DeMedeiros, the council unanimous voted to dismiss.



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