COFFEE SHOP TALK

Just Because Its Legal, Doesn't Make it Right

2010-08-27T18:44:00.002-04:00

"The Supreme Court has held that "the Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy." Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 283, 79 L. Ed. 2d 299, 104 S. Ct. 1058 (1984).

As the Court noted in Minnesota State Board:

Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. Legislatures throughout the nation, including Congress, frequently enact bills on which no hearings have been held or on which testimony has been received from only a select group. Executive agencies likewise make policy decisions of widespread application without permitting unrestricted public testimony. Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices. . . . Government makes so many policy decisions affecting so many people that it would likely grind to a halt were policymaking constrained by constitutional requirements on whose voices must be heard.

Id. at 284-85. After examining both policy and precedent, the Court found that "nothing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Id. at 285; see also Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 60 L. Ed. 372, 36 S. Ct. 141 (1915) (denying similar claim made under Due Process Clause); cf. North Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 717-18 (4th Cir.) (upholding state law barring lobbyists from making campaign contributions against petition-for-redress claim), cert. denied, 2000 U.S. LEXIS 1013 (U.S. Feb. 22, 2000) (No. 98-1887).

Under these cases, plaintiff has no constitutional right to a hearing before, a meeting with, or even a response from the Board of Selectmen. While some commentators have argued for a broader interpretation of the right to petition, we are immutably bound by applicable Supreme Court precedent. See State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 284, 139 L. Ed. 2d 199 (1997). Should plaintiff wish to reverse these precedents, he must do so in the appropriate forum."

So, it seems that there is no Constitutional violation here...BUT, there is absolutely nothing that forbids, or even recommends that a public body squelch public participation and debate. Allin Frawley is definitely right that just because it is legal, doesn't make it right. Indeed, it is interpretations of law like the one above, from our Federal Circuit Court, that make me question the common sense and wisdom of my profession (objection...fact not in evidence). I truly would not have believed that this was the state of the law, had I not researched it.

Thank you Marsha, for finally being forced to see the light, rather than the law. By the way Lincoln...nice cross examination, and way to control the witness.

Marsha, Marsha, Marsha...

2010-08-13T12:17:00.005-04:00

Saw the new rules Marsha drafted. Disappointed from a resident standpoint...love it from the lawyer who sues the Town perspective. Keep the detail Marsha. It only makes it easier for the BoS to make fatal errors.

In any event, being the member who RE-instituted the category "other," I have a couple comments on these proposed rules. I give Jane Lopes the credit for me putting "other" back on the agenda, based on a comment she made in the Nemasket Forum a while back, where she described how Vic Sylvia and others would come to the mike and have long "debates" on Town issues before the Board of Selectmen. Her comments resonated with me and I really respected the tradition that she described of Middleborough citizens confronting their government in the old New England way.

Since I have come to this Town, I have always heard that "we have always done it this way." This can be frustrating at times, because sometimes the phrase is used to perpetuate error. But where public comment and input is involved, it is quite another story. The tradition of free speech and debate before the Boards of this Town should be immutable and sacrosanct. Our Board should be the primary and jealous protectors of that right.

Marsha...I cannot count the number of times that you have backed silly, outdated policies and procedures with the mantra that "we have always done it this way." In fact, wasn't it you that argued that the Board has always conducted itself without written rules, so why change it now. You fought to maintain the tradition of not adopting rules.

Now, Marsha, you have apparently decided that you are willing to give up the tradition of acting without written rules, and you are also throwing out the longstanding tradition of citizens, and the Board raising discussion. Nobody asked you to change the traditions of the Board, just to write them down on a piece of paper so that newcomers like me know what those traditions are.

Your new rules -- which do not even have a provision that allows them to be amended by this or any later Board -- give an iron fisted grip to the Chairman, who is simply an officiate of the meeting and no more powerful than any other member, and puts a jackboot right on the throats of those people who have the greatest inherent right to speak out at a meeting -- the citizens and those people who are about to decide if they want you to remain a Selectman.

Marsh...get a grip and reconsider who and what you truly are when you serve. The people you are squelching are the same people who you need to let know you are listening. Hopefully, you will redraft the silly set of rules that you are proposing -- I really don't need the extra business.

THE RULES I SUBMITTED TO THE BOARD
RULES OF PROCEDURE FOR THE MIDDLEBOROUGH BOARD OF SELECTMEN:

SECTION I : PURPOSE:
These Rules of Procedure describe the duties and methods of operation of the
Middleborough Board of Selectmen.

SECTION II : ORGANIZATION:

A) RESPONSIBILITIES OF MEMBERS:

1. All members shall make every effort to attend each scheduled meeting.
2. Members of the Board have authority only when acting as a Board legally
in session. The Board shall not be bound by any action or statement of
any individual Board member, except when such statement or action is
pursuant to instructions from the Board.

B) OFFICERS:

1. ELECTION - A chairperson and Vice-Chairperson shall be elected at the first
regularly scheduled meeting following the swearing in of members elected at
the annual Town Meeting. Election shall be by a majority vote of those
present.

2. DUTIES - The Chairperson shall preside at all meetings of the Board, and
perform all duties required by law. In the absence of the Chairperson, the Vice-Chairperson shall preside and assume all duties and responsibilities of the Chair.

C) COMMITTEES: The Board, by vote, may delegate members of the Board to
investigate Town matters, to serve on committees, and to perform other duties.

SECTION III : OPERATION:

A) TYPES OF MEETINGS:

1. ORGANIZATIONAL MEETINGS - The Board may adopt the previous
Board's policies and procedures, subject to amendment as provided in these
Rules of Procedure. The Board shall establish a schedule for meetings for
the upcoming year.

2. REGULAR MEETINGS - A more formalized meeting of the Board generally
conducted in accordance with the order of the "Agenda" contained herein.

3. WORKSHOP MEETINGS - A less formalized meeting of the Board, generally
conducted for the purpose of providing Board members with a more detailed
understanding of a limited number of issues or to permit discussion of
issues in greater depth.

4. NON-PUBLIC MEETINGS - A closed meeting of the Board held for appropriate purposes in accordance with the Massachusetts Open Meeting Law.

B) SCHEDULE OF MEETINGS: The Board shall meet every Monday evening in a
regular meeting. Each meeting shall be posted in accordance with Massachusetts law. The
weeks in which the Board is not scheduled to meet shall be reserved for workshop
sessions as called by the Chairperson or Town Manager. The Board may alter this schedule of meetings by a majority vote of its members.

C) REPORTS OF COMMITTEES: Written reports from committees received by the
Board shall be filed for review by the Selectmen.

D) REVIEW OF AUDIT REPORTS: The Board shall review the annual financial report
submitted by the auditor as soon as the report is made available and take any
action related thereto.

SECTION IV : RULES OF ORDER:

A) QUORUM - A quorum shall consist of three (3) members of the Board.

B) AGENDA - Shall be published with meeting notice, and included in the minutes. A
suggested agenda is provided below. It may be changed by the Chair, or by vote of
the Board.
1.
2.
3.
4.
5. ….etc

Adjournment.

a) A motion for adjournment will usually not be in order until after the
completion of the order of business, unless a motion has been made
at the start of the meeting to adjourn at a specified time.

Persons, including Selectmen, wishing to place an item on the agenda must notify
The Board of Selectmen’s Secretary before the agenda setting deadline, which is
12:00 Noon on the Wednesday preceding the meeting. If the person is going to
make a presentation, s/he must provide a copy of all presentation material and
documentation to be included in each Selectman's packet which shall be available
no later than 4:00 PM on the Friday preceding the meeting.

Only bona fide emergencies may be placed on the agenda for discussion at the
meeting after the agenda setting deadline has passed

C) ROLE OF THE CHAIRPERSON:

The Chairperson's duties are as follows:
1. To open the session at the time at which the Board is to meet by calling the
members to order.
2. To announce the business before the Board in the order in which it is to be
acted upon.
3. To recognize members or other speakers entitled to the floor.
4. To state and put to vote all the questions which are regularly called or
necessarily arise in the course of the proceedings, and to announce the
result of the vote.
5. To protect the Board from undue harassment or otherwise uncivil conduct,
6. To assist in expediting all business in every way compatible with the rights
of the members and public by:
a) Allowing remarks when non-debatable motions are pending.
b) Calling a recess to permit restoration of order or clarification of an
obscure point if s/he thinks it advisable.
c) Guiding the members when engaged in a debate to stay within the
rules of order.
d) Ensuring on all occasions the observance of order and decorum
among the members and the public.
e) Deciding all questions of order (subject to an appeal by any two (2)
members) unless s/he prefers to submit the question for the decision
of the Board.
f) Informing the Board on a point of order, or practice pertinent to
pending business.
7. To authenticate by his/her signature, when necessary, all acts, orders, and
proceedings as directed by vote of the Board.
8. The Chairperson may vote as a member of the Board, but is not otherwise obligated to do so.
9. Discussions which are not addressing the business before the Board, or
which are conducted in a disorderly or disrespectful manner, shall be ruled
out of order. The Chairperson shall take whatever action is necessary to
achieve and maintain order, including ordering the removal of any person
who continues disorderly conduct.

D) CONDUCT OF MEETINGS: Meetings shall be conducted in accordance with
generally accepted practices of order and decorum. In the event of a dispute
regarding procedural matters, Robert Rules of Order shall serve as a guideline
with a vote of the Board being the final deciding authority.

E) RECORDING OF VOTES: Votes shall be by verbal outcry. The
vote of each member present shall be recorded. No action shall be re-considered at
a subsequent meeting in the same calendar year except by majority vote of the
members present and voting.

F) REQUESTS FOR INFORMATION: Should it become apparent to the Chairperson or
an individual Board member, in the interim between meetings, that additional
information relative to a specific item may be needed for Board use at the next
regularly scheduled meeting, a request for this information may be submitted to
the Town Manager. Any information provided to any individual Selectman shall be provided to the rest of the Board and shall note the origin of the request.

SECTION V : EMPLOYEES:

A) DUTIES: The Selectmen’s Secretary, or his/her designee, shall be responsible
for recording the minutes of the Board's meetings, and an official copy of the
record is to be filed in the Selectmen's' Office and open to inspection by any
person at reasonable times. In addition to keeping the minutes of the meetings, and in addition to any requirements under Massachusetts law, it is the duty of said Secretary to, at a minimum, record the essentials of the
proceedings as follows:
1. The kind of meeting - regular, special, work session, or recessed.
2. Time and place of meeting.
3. The presence/absence of Board members.
4. Whether the minutes of the previous meeting were approved or amended.
5. A brief, written record of the general topics discussed.
6. All main motions and points of order and appeals, whether sustained or lost,
and all other motions that were not lost or withdrawn.
7. Record of any votes by the Board, including names of those Board members
opposed if not unanimous.
8. The hour of adjournment.

SECTION VIII: AMENDMENT PROCEDURE:
An amendment to these Rules of Procedure may be moved at a Board meeting, but
shall not be voted upon until the next regularly scheduled meeting, not less than
seven (7) days later. A copy of any amendment shall then be certified and submitted
to the Selectmen’s Secretary for inclusion in the Selectmen's' Records.

SECTION IX : EFFECTIVE DATE:
These Rules of Procedure shall take effect immediately following a majority vote of the Board of Selectmen at a regularly scheduled Selectmen's meeting.

Open Meeting Law Violation?

2010-05-18T22:28:00.002-04:00

Chairman Brunelle has claimed executive session privilege for the pre-meeting BOS discussion regarding the Casino issues, based on her flawed belief that "potential litigation" is an exception. It is not in this case!

Potential litigation is an exception where the litigation is imminent and certain. It cannot be the case here. The dispute provision on page 16 of 21 does NOT allow litigation until after the 10 day Notice and good faith negotiations have occurred. In other words, there is no litigation until after the notice and negotiations to resolve the dispute.

There is no basis for having had the executive session on Monday and the minutes and content of the meeting must be disclosed immediately. An injunction would be fairly straight forward here.

As it says in the Open Meeting Law Guide"
Litigation strategy:
Discussions concerning strategy with respect to ongoing litigation obviously fits within this purpose, but again only if an open meeting may have a detrimental effect on the litigating position of the governmental body. Discussions relating to proposed litigation are not covered by this exemption unless that litigation is clearly and imminently threatened.21 That a person is represented by counsel and supports a position adverse to the governmental body's does not mean litigation is imminently threatened. Nor does the fact that a newspaper reports a party has threatened to sue mean imminent litigation.

21See Perryman v. School Committee of Boston, 17 Mass. App. Ct. 346, 352 (1983).

Her, it can't be clearly imminent and threatened, as it would be bad faith for the BOS to demand dispute resolution and good faith negotiations, with the clear and imminent intent to litigate before ever going through the conciliation process. That would be bad faith under the agreement -- so the BOS should cough up the contents of the discussions or risk the argument that they never intended to negotiate a resolution in good faith.

Practice of Law Without a License?

2010-05-18T22:22:00.002-04:00

I am still researching the issue, but ask yourself the following question: If this is a basic contract claim not involving any real federal Indian gaming issues (which it is), then why do we need an attorney who is not admitted or domiciled in Massachusetts to handle the litigation? Handling an arbitration looks like the practice of law in Massachusetts requiring a license to do so. Why hire an out of state big firm lawyer to do this contract case -- which is governed by the laws of the Commonwealth -- to handle a domestic contract case? It seems to be something that the BOS has not considered. The BOS should think about this, and if an indian gaming law expert is needed for a run of the mill Massachusetts contract dispute, then hire him on a limited basis to give expert testimony.

EXCLUSIVE: A Novel Argument for Breach by The Tribe

2010-05-18T22:02:00.002-04:00

I attribute this argument to the coffee shop guys as they were the catalyst.

Why did we not negotiate an explicit exclusive into this IGA? Good question, but the facts show that an exclusive was assumed by both parties as part of the facts. Why was it assumed? It was assumed because gambling was and is illegal in the Commonwealth. Based on that illegality, the only possible place for the casino to go would be a tribal casino on trust land in Middleborough.

The only place where trust land was possible and had been applied for was in Middleborough, so an exclusive was an assumed and built in part of the IGA. The Tribe was unable to go anywhere else to legally build a casino so Middleborough could justifiably rely on an assumption of exclusivity in Middleborough.

The only break in the exclusivity came when the Carcieri decision made it no longer possible for the Tribe to take the land into trust by way of the secretary--but the Tribe did not choose to cancel the contract at that point in time and committed to obtaining a Carcieri fix to proceed with the Middleborough casino. They even dodged the concept of any renegotiations as there already was the IGA in place. They continued to pay money to Middleborough. All of these facts helped to preserve the assumption of exclusivity, upon which Middleborough continued to justifiably rely.

Thus, I see the ability to argue that exclusivity was always a part of the agreement and that their going to Fall River was a breach of the IGA entitling us to the benefit of our bargain no matter where the Tribe builds. I think that this gives us a cause of action against Fall River and its mayor for tortious interference with known economic relations, and would allow us to sue Fall River for the benefit of our bargain (the 7M + infrastructure improvements). We may even have a claim against the Commonwealth for the same interference (if we can get past sovereign immunity).

All in all, I think an argument like this could get past a motion to dismiss if properly presented. I also note that any claim against Fall River first would be in Court--only the Tribe goes to arbitration.

Fall River Deal Stalls

2010-05-18T09:07:00.002-04:00

Go to http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20100518/NEWS/5180312. This article makes it look like maybe the Tribe call the end of the IGA too soon. The BOS position should remain the same and there are no replays. In other words, the BOS should proceed to vote to withdraw support for the land into trust and to oppose any land into trust for the Tribe. Now that they have canceled the deal, let them stew. If they want to come back, let them go back to the table for the amounts that we originally negotiated -- which Glenn Marshall called "racist." Middleborough does not need the Tribe. The Tribe needs Middleborough.

Question for Comment.

2010-05-17T18:02:00.002-04:00

Why can't a warrant article be placed on a Town Meeting warrant to declare the IGA terminated, based on the new facts, and to oppose any taking of the land into trust? That vote could then be sent to the BIA and our congressional delegates, and we could rezone the location as rural.

It seems only fair that with no deal, that the land should not be eligible as trust land with an open ended use. The Tribe has stated in no uncertain terms that they are not bringing the casino to Middleborough. If Middleborough sends the message that there will be a massive fight to take that land into trust, perhaps the leverage that the Tribe has oevr the state will dry up before the new gaming laws are passed. After all, the only reason the State gave into the Mashpee is the possibility of a casino on trust land. Remove that factor, and it may cause the state to rethink bumping the Mashpee to the front of the commercial casino line.

In any event, it is again time for the BOS to act, and to act strongly and definitively (Oh God we're in trouble). Take away the land into trust possibility, and the Tribe loses its luster to the State, and the Malaysians don't need the tribe in order to proceed.

My bet is that the BOS negotiates a short money deal with the Tribe, like they can keep most or the rest of the casino monies, in return for the BOS shutting up. Pretty weak, but most probable.

A little Over 4 Months Ago

2010-05-17T17:49:00.003-04:00

January 29, 2010 -- Sort of an odd foretelling of the current situation as reported in the papers. Very odd how the writing was so clearly on the wall, but those in power and those representing them could not see the forest for the trees.

"The deal with Middleboro is contingent on the land being taken into federal trust and the high court's decision puts that arrangement in peril, said Adam Bond, a former Middleboro selectman who helped negotiate the contract. If the Supreme Court ruling stands, it may qualify as an "impossibility of performance" and give the tribe leverage to walk away from the deal, Bond said.

It's leverage that Bond has been urging selectmen to use for months to sweeten the town's deal with the tribe. One of the areas the board could have targeted is easing the $250 million infrastructure improvements, he said. "The tribe has done all its negotiating with everyone else," Bond said. "The board of selectmen has done no negotiating."

But Dennis Whittlesey, the Washington-based attorney who specializes in Indian gaming law and was hired by Middleboro to craft the deal, said the pact is still binding, despite the court decision.

"The town does have a valid and enforceable agreement with the tribe," Whittlesey said yesterday. "If the tribe chooses to go somewhere else, then the town would have to consider its options under the agreement."

Middleboro town leaders did not return requests for comment yesterday.

"All of their assurances of being partners to the town are ringing pretty hollow right now," said Mark Belanger, a Middleboro resident and staunch casino critic.

What Belanger calls a rushed agreement between the town and the tribe set off years of bickering between pro- and anti-casino factions."

Very Interesting

2010-05-17T12:51:00.003-04:00

Do we really ever know what's happening in Middleborough? Check this out!!!!

Lost Opportunities

2010-05-17T08:05:00.003-04:00

The BOS has really shown how the failure to act on opportunities during the course of a deal will cause that deal to crash and burn. As Mimi advocated, we cannot kick our "neighbors" when they are down. That is true.. but does not apply to business, and the deal with the Tribe was business. The BOS forgot that and, at least figuratively, nobody ever returned the blanket.

The attitude of Al Rullo and Marsha Brunelle that we have to wait and do nothing rather than push and enforce the agreement at every step has led to the BOS relieving us of any realistic opportunity of getting something out of the Tribe.

The time to start pushing was back when the Glenn Marshall issues came up. Then when Shawn Hendricks removed us from the mix in his letter to the Governor. Then there was the opportunity to demand a meeting with the Tribe under the Dispute Resolution provision (p. 16 of 21 of the IGA). That provision would have gotten us to the table with the Tribe within 10 days of the notice being issued -- as opposed to the 6 months this garbage with the Tribe has continued.

Well, if you ever need a group of people that can kill all possible opportunities in a deal through inaction and sloth, call the Middleborough BOS. Nice job guys and gals. Way to snatch defeat from the jaws of victory.

Anyone consider a suit against Fall River for tortious interference with known contractual relations? Just a thought which will probably also be overlooked.

Dissed Again! First Marc...Now Cedric

2010-03-06T17:34:00.004-05:00

As was reported by the Enterprise:

Cedric Cromwell, chairman of the Mashpee Wampanoag tribe, released a statement saying, “Once gaming is expanded, we intend to move forward with our plans to build a full resort-style casino in Southeastern Massachusetts under the rights afforded to us as a sovereign Indian tribe.’’

Are we invisible, or just chopped liver. All of our "friends" and "neighbors" seem to be looking straight through us in Middleborough. Marc Pacheco abandoned us for his racetrack agenda, and -- from what I can tell -- intentionally did not mention Middleborough specifically as a casino site in his legislation (both initial and to be corrected). Thanks Marc.. will be voting for you real soon.

Now, our great friends and saviors, the Mashpee Wampanoag, those beacons of forthrightness and eptitude, are also forgetting that Middleborough is where they signed an IGA to put a casino. Are we the ugly step sibling that nobody wants to say by name, even our betrothed, the Mashpee. Are we the date that puts out on a drunken night that the Mashpee just don't want to call the next day?

Cedric, can you say Middleborough...I bet you can. But you just don't actually say it when it counts...like when asked about your plans to build a resort casino. We are in Southeastern Massachusetts, so I can't fault you for that. Your geography is incredible, but pleeease tell me that you just had a senior moment and couldn't remember the word "Middleborough," like Shawn forgot it when writing to the Governor.

Folks, the Tribe has just answered the letter that the Town sent the Tribe to say "do we still have a deal?" The answer is, sure, unless I find a better looking, richer date in the meantime. We are being told to take the casino development money left on the bedside table, and be happy that we got some dinner first. The antis did say that gambling would increase prostitution--just look at what the Tribe is doing to Middleborough without any pushback from the BoS.

Middleborough Board of Selectmen...do you feel used yet? Are you mad yet? Do something to wipe some of the egg off the face.

What was the point?

2010-02-28T14:41:00.002-05:00

People have questioned the point of the plow gate suit, and certainly questioned my motives. As to the latter, think what you want about me, the results speak for themselves. As to the former, I will try to explain.

The "subject" of the suit was the plowing of the 15 private/unaccepted ways, and certainly is less important than the point. Much as the special 15 (and even the Select 5) think it was all about them, it wasn't. The point was that the people still own the government--its not the other way around.

The Town officials serve at the whim of the people, not only at election time, but also throughout their term. The people always have recourse for the improper or illegal actions of our public servants, and you can beat City Hall.

The point is that we the people own the seats (a la Scott Brown), and we only lose that ownership if we succumb to a lachrymose view of political history. We only suffer under the government yoke when we accept the choice of fear or inaction.

Here, a small group of citizens that had a point to make, made it -- for better or for worse. A Superior Court and an Appeals Court saw it the same way -- government officials are as subject to the laws as the rest of us huddled and unwashed masses. They actually can be forced to comply with the same standards that bind the rest of us.

Said more directly, government serves us, and at any time we can retake the reigns through concerted and focused action, through the polls, through commentary, and, if the circumstance warrants, even litigation. In Middleborough, contrary to popular belief, the Selectmen are not the all and powerful OZ, and we should stop treating them that way. Call them on their actions (or inactions) when they are wrong.

You may not like the cases when they are brought. However, the last two cases have shown that: (1) our BoS acts unconstitutionally in its "hearing procedures" (the dog appeal)and still refuses to adopt any; and (2) that the BoS has no right to simply and willfully disregard the law (plowgate).

So contrary to the BoS publicly stated view by its current Chairman, Selectman Brunelle, and Selectman Duphily, that the plow suit plaintiffs were mean-spirited, shameful, and not attuned to the Middleborough way, I note that two Courts have said otherwise. As to the "Middleborough Way" comment,the many life-time citizens on the suit (including the several veterans on the suit that served to protect our political freedoms) certainly contest such a statement, and would remind the Board that we live in America, and it always will be the American way.

Knives in the Back!!!

2010-02-12T20:24:00.005-05:00

It seems that Senator Pacheco is taking great issue with the Enterprise saying that his bill puts the casino out of Middleborough -- even though he represents Middleborough. I'm not sure what the flak is all about. His bill states that the Tribe will get a preference in Bristol County Market, and the bill he and State Rep Canessa and State Rep Calter--also two who are supposed to represent Middleborough--have sponsored even more clearly puts the casino in Bristol County, not Middleborough.

Marc apparently does not see the problem for Middleborough with the bill, and adamantly insists that he is not supporting the move of the casino out of Middleborough since putting it in Fall River wouldn't even put it in his district. But there is some sense for Marc in this scenario--the one where Middleborough loses.

In my opinion, I see the following:

1. Both bills on which Marc has placed himself are anti casino in Middleborough. His bill accepts the possibility that the casino go somewhere other than Middleborough, and the bill he and Calter and Canessa sponsored expressly puts the casino out of Middleborough. In fact, if he and Canessa actually had any respect for the Middleborough contract, the only preference that would be placed in the bill for the Tribe would be exactly where the deal in the IGA puts it--Middleborough. Marc and Steve have screwed Middleborough with the legislation, because that legislation creates a possible reward for the Tribe in leaving Middleborough, but staying in the region.

2. Why would Marc do this in an election cycle. Just look at where a number of his contributions come from and his loyalty to the race track. Move the Tribe out of Middleborough and protect Raynham. This is a move that makes a lot of sense, and would probably be good for BOTH the track and Middleborough under the right circumstances, but to continue to play like you are representing the interests of Middleborough, when the facts show that that is clearly not the case, is disingenuous at best.

As to the Tribe, where are they in telling Middleborough what they are doing. How can they just let the know nothing, do nothing BOS just sit in a round room looking for a corner. I am of the firm conclusion that they are using Middleborough as leverage and will drop Middleborough at the first sign of a better and cheaper deal. The problem is that the Tribal leadership is getting ready to give up their most prized possession -- their sovereignty -- to get a casino. Bad for the Tribal members, and a stupid play for a short term gain.

As to the BOS, they suddenly have been given an opportunity (again) to take hold of the situation and get some payout for the Town with their new found leverage, but they are stuck in neutral. This set back poses at least 3 different negotiation opportunities with both the Tribe and the State, where we could probably get significant money out of one or the other WITHOUT ever having to host the casino in our Town. Think about that...money without impacts. That would satisfy both the pros and the antis, and would be a very nice conclusion to this perpetual soap opera. But, alas, our BOS has no creativity or acumen for finding the leverage points in these most recent, and seemingly negative, developments. Think hard BOS and you will discover that the way things are playing out, we have the power to get out of this whole problem with a flow of money in our pockets and a Town that stays just as it is--the best of all worlds. Or don't think at all and watch Middleborough get it in the back from Marc, Steve, and the Tribe. Tom has been up front on his position, so I have no beef with him.

Finally, it has become absolutely clear to me that no casino in Middleborough would probably be the safest result, since, as I have said before, the leaders of this Town are not capable to handle the 800 pound gorilla in the room. They certainly have no control over Marc Pacheco, and certainly do not command the respect or loyalty of Steve Canessa. If they did, neither Steve nor Marc would have the nerve to so disrespect the Town's contract with the Tribe by tortiously interfering with a known contractual relationship. If we can't get our own to respect us, then why do we expect the Tribe to respect us.

Absence Makes the Heart Grow Fonder

2010-02-12T15:51:00.004-05:00

If this saying is true, then the "cheap seats" Selectman should have no problem getting back into office. Not surprisingly, SS was absent at least 20 times in his last term, an late at least 11 times. Mr. Frawley, also running for the seat, has been at more meetings in the last two years and has a better attendance record than Steve "Cheap Seats" Spataro, and he isn't even a Selectman.

Which of the two would be up to date on the issues? Which of the two would have listened to all the debate and done the research? Mr. Frawley.

The cheap seats are apparently really valuable to Mr. Frawley as he makes sure at least one is kept warm and polished each week with his butt. If you have watched him, he also brings his brain.

I may not agree with every position he has, but he spots problems and offers solutions. He speaks his mind respectfully and professionally. He comes ready to debate the issues, and he is engaged. Sure would be an interesting change of pace, and while familiarity breeds contempt, familiarity is also the result of actually showing up to meeting and showing up on time and prepared. By the way, I don't think he would sit and text message during the meetings.

Ask the blind man...he saw it all!

2010-02-11T11:49:00.002-05:00

Hello? Is anybody out there? BoS...can you see it?

The BoS just doesn't get it. The Tribe is out negotiating a better deal--apparently they don't share your "neighborly" feelings Mimi. It also appears that our own so-called representatives are on the move to help the Tribe get a casino -- SOMEWHERE ELSE. Good riddance at this point.

We have a House Bill and a Senate Bill that BOTH show that the sponsors of the Bill would be more than happy to have the Wampanoag Casino somewhere other than where the Tribe and Town have agreed to put it. Mr. Pacheco claims that he has no interest in having the casino moved from Middleborough, yet the bill he offered (just something to get discussions started), talks about a preference to a sovereign tribe in "Bristol County market" which apparently is supposed to include Plymouth County.

For the moment, let's assume that that strained interpretation is true. If the sponsor of that bill, our Senator, knows that Middleborough has a penned deal with the Tribe, then why would any bill he sponsors give a preference for any location other than where there is already a contract--Middleborough. The bill adopts as an assumption that the casino can be given preference in a place other than Middleborough. Now I know that our representatives say they won't try to tell the Tribe where to put its casino. Apparently, our representatives don't want to acknowledge that the Tribe and the Town already made that choice. In fact, to give a preference in a region, rather than to expressly state that a preference will be given for the Middleborough deal certainly is a good basis to ask "Who do you really represent, and it doesn't seem to be little Middleborough."

Then add to this problem that Sen. Pacheco also has sponsored a bill with Tom Calter, which bill also ignores the deal in Middleborough and puts the casino somewhere else. Tom Calter represents us, BUT he has at all times made his position known that he does not believe a casino in Middleborough works--he never hid that belief! See http://www.mass.gov/legis/bills/house/186/ht04pdf/ht04068.pdf. Canessa, Calter, and Pacheco are all on this Bill, which refuses to recognize the deal already in place, and contemplates the possibility of the casino being granted somewhere else.

Then, we have the Tribe meeting with the Governor and other State officials regarding the details of the casino project, and perhaps where it could go other than Middleborough, but the Tribe does not have us at those meetings. Our attendance was promised by our "neighbors" from Mashpee, and our attendance was required under the IGA. In fact, it was our neighbor, Shawn Hendricks that wrote to the Governor in September 2008 that:"We ask the representatives of the Town sit in on negotiations when issues affecting the host community are discussed..." Moving the casino to another location certainly would affect this host community--but our Selectmen, all of them, are doing nothing (at least, nothing in the open).

BoS, where are you. Are you sleeping the slumber of fools. Is the Tribe still our "neighbor," or do good fences really make good neighbors? Does the impotent vote of Middleborough really jar our government representatives to support the contract? Do you care to actually look at the pieces on the chess board and make a move--if there is any move left?

At this point I have to agree with the antis that this deal is dying a slow and morbid death, and that by the looks of who the Town is in bed with, all neighborly and warm fuzzy feelings should be gone. The deal has gotten away from this Board, the opportunities to save any part of it, or to get something from its are almost all gone--except for one.

Nothing has been decided by the legislature (at least not publicly), so the Tribe still needs the Town as a safe base. Threaten to take away their safe base, call them on their breaches and negotiate their exit from Town, and make them either commit to this Town NOW, or risk all of their hopes on what the state will give them elsewhere. This is the right play, as without the penned Middleborough deal, the State has no incentive to deal with the Tribe, and the Tribe has no place to put the hallowed ever shrinking bingo hall.

Call it a day BoS, and call their cards. Its time to see who wins the pot and move on with life. All it takes is a phone call and one meeting.

Legal Concepts to Consider When Thinking Casino and Carcieri

2010-01-28T18:09:00.002-05:00

Rest.2d of Contracts § 261 states the general principle under which a party's duty of performance may be discharged due to impracticability. I.e., he may be relieved of that duty if performance has unexpectedly become impracticable as a result of a supervening event. The three categories of cases where this general principle has been traditionally applied are (1) supervening death or incapacity of a person necessary for performance. (2) Supervening destruction of a specific thing necessary for performance. (3) Supervening prohibition or prevention by law. In order for a supervening event to discharge a duty the nonoccurrence of that event must have been "a basic assumption" on which both parties made the contract. The rationale for the defense of commercial impracticability is that the circumstance causing the breach has rendered performance so vitally different from what was anticipated that the contract cannot be reasonably thought to govern.
Frustration of Purpose
Where a party's principal purpose is frustrated by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, the duty of performance is discharged. (Chase Precast Corp. v. John J. Paonessa Co. 409 Mass. 371; 566 N.E.2d 603 (1991).) The requirements for discharge are that: (1) the purpose that is frustrated must have been a principal purpose of that party in making the contract; (2) The frustration must have been substantial; (3) The nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made. (Rest.2d § 265.)
The frustration doctrine means that although it is not impracticable or impossible for the payor to pay, if something has happened to make the performance for which he would be paying worthless to him, an excuse for not paying, analogous to impracticability or impossibility may be proper. The doctrines of impossibility or frustration require that some event must occur, the nonoccurrence of which was a basic assumption of the contract at the time it was made. A good illustration of the frustration doctrine is found in the "Coronation Cases," one of which is Krell v. Henry, 2 K.B. 740 (1903). There, plaintiff made a written contract to rent his apartment to defendant for two days to view the coronation procession of King Edward VII. After the agreement was made the coronation was cancelled because the King fell ill. Defendant then refused to pay the balance of the rent. The court ruled that he was justified in not paying reasoning that the taking place of the processions along the route in front of the apartment was regarded by both parties as the foundation of the contract. At the time of contracting the parties did not contemplate that the procession would not take place.
Remedies In The Event of Discharge
The general rule is that when a contract is discharged by impossibility or frustration the parties must make restitution for the benefits conferred upon them. (Rest.2d § § 272 & 377)

Any conclusions to draw? Any out for the Tribe if they want to move?

My Response Sent to the Gazette--Will it be published?

2009-12-08T09:32:00.000-05:00

To the Editor:

After reading the Gazette last week, I can only say that the paper and the letter writer have missed the point, and decided to simply attack the messenger. The Board of Selectmen meeting did not go any differently, and makes me wonder if the Board gets the point: Do what you like, but do it lawfully.

The facts:

1. The Town plows 15 of more than 100 private ways, using tax money to do so.
2. Unless and until the citizens vote to adopt 6C, the Town cannot spend public money for private benefit.
3. Middleborough has never adopted 6C.
4. Town counsel has told the Town that plowing 15 of more than 100 private roads at the expense of the taxpayers violates the law.
5. At the November 16 Selectmen’s meeting, the DPW Head said he would continue the practice anyway.

Of the now 21 taxpayers on the suit (based on a consented to amendment), only two are from Oak Point. The “taxpayer” issue was made irrelevant by the addition of the 12 Plaintiffs, before the Monday night meeting—which the Chair failed to disclose.

The argument seems to go that if the Town does not keep plowing the 15 of more than 100 private ways, those people will bet put in harms way. No one cares about the other more than 100 private ways. They should be left in harms way. They pay taxes like the people on the 15 private ways do. So what makes the 15 more special than the 100? Why do the 15 use our tax dollars for plowing, while the other 100 either pay for their own plowing, or don’t get plowed.

People have wagged their fingers at the suit claiming this is a “safety” issue. On the 100 private ways there also are people that are disabled, sickly, of compromised health, etc., but none of the people on the 15 being plowed has ever argued that the other 100 should be plowed. Apparently, the 15 private ways are special, and deserve to keep getting the benefit of the taxpayer money, while the other 100 can simply fend for themselves. What is the “safety” difference between the 15, as compared to the other 100—nothing! But no one has argued that the other 100 should be plowed.

Treating people this discriminatory way is a violation of the 14th Amendment to the U.S. Constitution which guarantees EQUAL protection to all citizens. It doesn’t look like the 100 are being as equally protected as the 15, and no one has given a rational reason why.

In order to be able to plow those private ways with public access, the Town is required to have a vote on whether to adopt 6C. Without 6C, the Town can’t use our money to plow any private ways. However, to continue the process anyway, steals your vote. In other words, without letting you vote on the issue, that the Legislature has said you have a right to vote on, the Town has decided the issue without letting you vote—a violation of your 1st Amendment rights under the Constitution.

As a retiree teacher, does Mr. Denise believe that the lawsuit against the Town to get more money for retirees is wrong? Maybe he believes that that lawsuit is not the Middleborough way either—but he has sure been silent on that point, and has not questioned the motives of the teacher retirees.

Although some people predictably question my motives, it should be clear that the suit challenges an unfair and unlawful situation, and illegal spending. As to my oath of office as an attorney (which Mr. Denise questioned), I swore to uphold the U.S. Constitution and the Constitution of the State of Massachusetts. I think this suit accomplishes that, and therefore, I support it.
Respectfully,

Adam M. Bond

So Nobody Has A Question--Dan Murray's Opinion Regarding Plowing Private Ways

2009-11-19T11:46:00.005-05:00

What's The Big Deal?--Its In Violation of the Law!

2009-11-19T10:34:00.003-05:00

Middleborough has been appropriating money to conduct snow and ice removal from PRIVATE ways. Town Counsel, last Monday, told the Selectmen that the law prohibits the Town from appropriating public funds to remove ice and snow from private ways. See MGL Ch. 40, Sec 6C. Until the question of using public monies for this purpose is put on a ballot (see MGL Ch. 40, Sec. 6D), our collective tax monies cannot be spent to give those people living on private ways a freebie.

If the private ways need plowing, they should do what the rest of us do...they should hire a snow plow. I pay for mine, and apparently, in these fiscally strapped times, I am supposed to pay for them.

DPW head Baggas is simply addressing the claim that the Town does not have a revenue problem, it has a spending problem. He is finding a way to reduce spending by stopping illegal activity defined by the use of public monies to plow private ways. Our illustious BoS is "considering" the question. What is there to consider? The statutes are clear, and as Attorney Murray stated, it would be easy for a 10 taxpayer lawsuit to get an injunction against the Town to stop the plowing.

The Schools want an override, as do other departments in Town, yet there is a group of people on the private ways that want the Town to continue to illegally appropriate scarce funds for their personal benefit, and to the detriment of the rest of us. Maybe the money saved could buy some computers for the schools, fix the elevator at the library, of even pay for custodial services at Town Hall.

But how is there any question that the plowing practice must stop under the law, and that it cannot be done without a vote of the citizens of Middleborough.

As an aside, it is incredible that our illustrious and always vigilant local newspaper has the opinion that it does not even know why this has become an issue or ever was raised. Well, illegally spending our tax money always is an issue, particularly where the Town is setting up to ask us to give more. Two-ply! Two-ply!

GOOD FOR THEM--RETIREES SUE TOWN

2009-11-08T22:39:00.002-05:00

The retirees have apparently decided to sue the Town of Middleborough for the increase of their insurance coverage contribution. The Town employees were given pay increases to cover their increased costs of coverage, but the retirees--many of whom are on a fixed income--received absolutely no increase from the Town.

Actually, this issue was raised at the last Town Meeting, where the retirees asked that each retiree be frozen at the contribution they were making upon their retirement. If they were at 80/20 they would stay there. If they were at 90/10 they would stay there. The Town Meeting voted to favor this plan, but Town's labor counsel said the vote was unenforceable and could only be treated as a referendum. The BoS promptly took that advice as their license to screw the retirees.

Why do I say they decided to "screw" the retirees? It seems a cynical view. Well, it is backed by fact. When I was on the BoS, there was a discussion as to whether to do collective bargaining under 32B. This would have actually ENSURED as a matter of law that the retirees would have a seat at the table witth the Town. I was in favor of that, but the Town's labor counsel, and the other selectmen did not want to be subject to mediation or to negotiating with the retirees, that labor counsel said we could simply force to contribute additional amounts. Long before Town meeting, the Selectmen had decided to sacrafice the retirees, and do a dollar swap with the current employees.

You may not understand that many of the retirees have pensions that do not even come close to those that our past TM retired with. Many retired at $30,000 - $40,000 pensions that do not leave them room to lose even small sums of money. They served the Town, retired, and never expected that they would have to pitch in more money to have insurance coverage. This was a reasonable expectation, and one which the BoS strategized to ignore.

It also makes no sense. There are a set number of retirees in any one class of contributors if you set their rate as of the date of retirement. By definition, that group is a shrinking group as they die off. The Town, by increasing the employee contributions will save significant money.

Insurance rates have increased by approximately 10-12% per year, and the Town has given out 1 1/2 - 2 1/2% increases to current employees in return for concessions on the contributions. But it is clear that the savings to the Town will quikly out pace the increases given to current employees in the dollar swap. That savings could be shared with the retirees to pay for the additional contributions sought from these retirees. Since their numbers are dwindling as they die, the savings to the Town will slowly continue to increase as the retirees die off.

What is the problem sharing the savings with the retirees that served this Town honorably for years at salaries much more modest than those currently being paid. The BoS set them up and they are hiding behind Town Labor counsel to avoid the political fall out.

Elections are coming and the retirees are a force. My opinion is don't vote for Spataro, Brunelle, or Rogers in the next election. In my opinion, they are no friends of yours, and they have known since months before Jack retired that were going to screw the retirees--because they could.

Go get 'em!

CHUTZPAH

2009-10-28T16:54:00.002-04:00

Chutzpah (pronounced /ˈxʊtspə/) is the quality of audacity, for good or for bad. The word derives from the Hebrew word ḥuṣpâ (חֻצְפָּה), meaning "insolence", "audacity", and "impertinence."

I know that the news is not new, but the Mashpee are opposing Cape Wind because the wind turbines would be visible from shore where they purportedly perform a sunrise cerimony of religious significance. Apparently alluding to the application of the American Indian Religious Freedom Act (AIRFA), the two Mashpee Tribes are claiming that the turbines would interfere with their religious freedom.

I take no position on Cape Wind--I am not knowledgeable enough about it to comment one way or the other. On the other hand, chutzpah I do have and know well.

Essentially, the tribes want to block Cape Wind in order to protect the religious freedoms of a minority group and their religious beliefs--regardless of any benefit that Cape Wind might provide. The protection of the minority is apparently of great significance to them and is part of what they believe should be the fabric of Massachusetts.

Many individuals -- granted, the minority -- oppose gaming in Massachusetts and in Middleborough forboth religious and moral reasons. The Mashpee could care less about that minority where their casino interests are involved. They could care less that the visual landscape of Middleborough would change such that this same minority could reminded each day that the town in which they live is funded by an activity which they regard as sinful and which is direly contrary to their belief system.

The Mashpee actively disregard this religious minority and cast it aside for their own economic gain. However, the advent of a casino would be even more detrimental to this religious minority--since the social costs and local reprecussions would clearly be far more extensive than simply seeing some turbines on the horizon.

Hypocracy apparently is the rule of the day, and not knowing when to keep their mouths shut is simply a symptom of an arrogant sense of super entitlement. Perhaps if the Mashpee agree to give up any designs on having casinos in Massachusetts, then we could support their currently hypocritical opposition to the Cape Wind project.

I can honestly say that the past months of watching the decisions made by the Mashpee, in addition to some of the baseless and foolish comments coming out of the mouths of their leadership certainly has led me to the conclusion that they are currently incapable of self governance, let alone operating a resort casino (or double wide with a buffet and 300 room hotel).

Retort of a Sort

2009-10-22T17:43:00.004-04:00

On a site--which shall remain unnamed--a perpetuator of rumor, actually has half a truth: He says "I don't know but I found out a lil tidbit of info.. Adam voted to kill a dog a few years back for attacking sheep? Ain't that a boloney slap in the back of the neck on Mimi and Crew."

Read the Minutes yourself, and you will see the difference in the facts and how it is distinguishable.
SELECTMEN’S MEETING
AUGUST 4, 2005

Chairman Perkins called the meeting to order at 7:01 PM.

Selectwoman Brunelle, Selectman Andrews, and Selectman Bond were present.
Selectman Wiksten was absent.

HEARINGS, MEETINGS & LICENSES

Public Hearing – Dog Complaint

Chairman Perkins read the Town’s Bylaw on ‘Dog Complaint Procedures’. It included the duty of the Board to hold a hearing regarding a complaint within ten (10) days after the date the dog(s) is apprehended.

Chairman Perkins opened the hearing.

Bill Wyatt, Animal Control Officer, was present. He told the Board of the incident that occurred on July 29, 2005 at approximately 4:50 PM. Mr. Wyatt told the Board he had received a call from Desk Officer John Graham regarding dogs attacking sheep at 319 Miller Street.

Mr. Wyatt said he went to the location at which Officer Costa was already at. He and Muriel Duphily, the complainant, told him that the dogs belonged to a neighbor, and had taken off running down the street.

Mr. Wyatt went to the driveway of 299 Miller Street, home of Thomas Stevens, where he observed a small terrier dog with blood all over its mouth, face, neck, feet, and backside. He took the dog into custody and called BCI to take photos.

Mr. Wyatt said he and Sgt. Batista, who had arrived on the scene, noticed a pitbull behind the house with blood on it. He said he struggled to apprehend the dog, which was scared and aggressive. He finally captured the dog using a rabies pole.

Mr. Wyatt said there were no collar or tags on the dogs.

Peter Brow, and his son Matt, arrived on the scene and stated that the pitbull, which is also part boxer, belonged to him. He stated that the other dog belonged to Thomas Stevens, who later arrived to ID the dog.

Muriel Duphily, the complainant, was present. She told the Board that the scene was “like a war zone”.

Ms. Duphily said a half hour prior to arriving at her house, she had passed her cousin who had been there with three (3) small children. She said the dogs were a clear and present danger to those children.

Ms. Duphily said both dogs should be put down because they were both involved. She said the pitbull had been observed at the Stevens’ house for over a year.

As of Tuesday, other dogs belonging to Mr. Stevens also had not been licensed or vaccinated.

Ms. Duphily said Mr. Stevens “doesn’t believe in leash laws, kenneling, or tying a dog up”. She said his dogs coming onto her property has been an ongoing situation.

Chairman Perkins asked for graphic details of the event.

Ms. Duphily told the Board how she observed the small terrier with a sheep on the floor of the barn, shaking it by it neck with blood flying.

To her left, Ms. Duphily observed the pitbull with two (2) sheep cornered. She saw the dog bite the jaw of one of the sheep, hearing it break. The dog then bit the ear off the other sheep. Ms. Duphily said she screamed and hit the dogs with a 2x4.

Ms. Duphily said that three (3) sheep were killed. Two (2) remain.

Ms. Duphily notes that other dogs owned by Thomas Steven were present on her property on Sunday when a news crew was there to do a story.

Matt Brow and Thomas Stevens were both notified of the hearing, and were present.

Mr. Brow told the Board that he has been away for 10 months, and “had different people watching” the dog while he was gone.

Selectman Bond asked who was watching the dog at the time of the attack.

Mr. Brow said he wasn’t sure.

Selectman Bond asked if Mr. Brow’s dog was licensed and had a rabies shot.

Mr. Brow said no. He said the dog had been previously licensed in Lakeville over a year ago.

Thomas Stevens apologized to the Duphily’s. He said the facts are compelling, but said it was not possible for his 18 pound terrier to kill a sheep. He presented pictures of the dog with his children.

Mr. Stevens said he agreed the dog was off the leash, and it was probably menacing the sheep, but said there was no evidence that it had caused any damage. He said it was anatomically impossible, noting the dog does not have fangs.

Mr. Stevens said the pitbull does not reside at his house. He explained that Mr. Brow’s mother lives with him, and the dog occasionally visits with Mr. Brow’s brother.

Chairman Perkins noted pictures from BCI showing blood on the terrier.

Mr. Stevens said anyone in the proximity, including Ms. Duphily, would be spattered with blood. He admitted that his dog could’ve “nipped” at the sheep, but could not hurt a 100 pound full grown sheep. He said the dog was observed pulling at the sheep’s nap which is very thick. He said there is no evidence it punctured the skin.

Selectman Bond asked Mr. Stevens how many dogs he owns.

Mr. Stevens said four (4).

Selectman Bond asked how many were licensed.

Mr. Stevens said all are licensed now, but weren’t at the time of the incident.

Selectman Bond asked how many dogs were up to date with their rabies shots as of July 29th.

Mr. Stevens said one (1). He said that “the little one” had been quarantined because it had been bitten on the neck by another animal. He said the dog must be vaccinated after quarantine.

Selectman Bond asked if the dog was out of quarantine on July 29th.

Mr. Stevens said yes.

Selectman Bond asked about leashing the dogs.

Mr. Stevens said he has been good neighbors with the Duphily’s, noting that Willy is godfather to one of his sons.

Mr. Stevens said farm life is different. He said people “deposit animals on farms”. He told the Board of an incident where Mr. Duphily had shot a dog that he had been nursing.

Mr. Duphily told the Board that he had shot the dog because it was chasing his sheep inside the pen.

Selectman Bond asked if Mr. Stevens was aware of the leash law.

Mr. Stevens said yes.

Selectman Bond noted that, under the ‘Rules and Regulations Relative to the Control of Dogs in Plymouth County’, “a person may kill a dog when it is out of the enclosure of its

owner or keeper and not under his immediate care in the act of worrying, wounding or killings persons, animals or fowls.”

Mr. Stevens asked Selectman Bond to define worrying.

Selectman Bond said a reasonable person would consider it menacing.

Selectman Bond noted that he had visited the terrier at the pound. He said it is a wire-haired terrier, which is an intelligent breed. According to rescuealldogs.com, the dogs do have a temper and will inflict pain when it receives pain.

Mr. Stevens said he wanted to see evidence, besides the photos, that his dog did damage.

Mr. Stevens told the Board that he has done some “preventative maintenance”, and has constructed a fence around his barn to keep his dogs locked up. He said he is “doing his part to be prudent and responsible”.

Mr. Wyatt noted that the dog had been under quarantine because it had been bit by an animal of unknown origin. He said he had explained to Mr. Stevens that, when a dog is under quarantine, it must be vaccinated for rabies after 5 months. He noted the dog had not been vaccinated after the 6 month quarantine period.

Selectman Bond noted previous reports of Mr. Stevens’ dogs, including an April 25, 2000 report of dogs all over the area, November 14, 2002 the dogs were loose, unlicensed and without shots, January 7, 2003 a dog was shot, and January 9, 2003 a dog was chasing a jogger.

Mr. Wyatt noted that care and custody of a dig is proof of ownership of a dog in the eyes of the law.

Selectman Andrews said he was concerned with the terrier “nipping” a the sheep’s nap, explaining in the future it could be a child.

Selectwoman Brunelle said Mr. Stevens may be a “good neighbor”, but he is not a responsible pet owner. He has allowed his dogs to roam and destroy other people’s property.

Hearing no further comments, Chairman Perkins closed the hearing.

Motion was made by Selectwoman Brunelle, and seconded by Selectman Bond, to euthanize both dogs and to order both parties to make restitution to the Duphily’s.

Selectman Bond amended the motion, seconded by Chairman Perkins, to euthanize both dogs, order any additional dogs be restrained and licensed, and fine the owners as follows:

Failure to License

Mr. Brow $10.00
Mr. Stevens $20.00

Failure to abide by the Leash Law

Mr. Brow $10.00
Mr. Stevens $40.00

Failure to Vaccinate in accordance with MGL 140 sec 145(b).

Mr. Brow $50.00
Mr. Stevens $150.00

Vote on Amendment was 0 – 4.

Vote on original motion to euthanize the dogs was unanimous.

Upon motion by Selectman Bond and seconded by Selectwoman Brunelle, the Board
VOTED: To order any additional dogs be restrained and licensed, and fine the owners as follows:
Failure to License
Mr. Brow $10.00
Mr. Stevens $20.00

Failure to abide by the Leash Law
Mr. Brow $10.00
Mr. Stevens $40.00

Failure to Vaccinate in accordance with MGL 140 sec 145(b).
Mr. Brow $50.00
Mr. Stevens $150.00
Unanimous Vote.

Mr. Brow’s fines total $70.00, and Mr. Stevens’ totals $210.00.

THE PLEASURE OF THE BOARD OF SELECTMEN

2009-10-19T19:27:00.006-04:00

Well, Steve tried to get the BOS to discuss the Board's lack of a constitutional process in quasi judicial hearings, based on the loss of the Town's second unsuccessful appeal of the dog hearing. The BOS wanted to wait to read the decision--a single sentence.

The BOS stated that they have been doing the process this way for years, and the Chair saw no problem with the process as it was executed in the specific hearing. Some time in November they may address the issue.

It was a good try Steve, but you are paddling against the tide. They don't want to correct the process, because they don't really understand their obligations to the citizens of Middleborough. They prefer to prepetuate error rather than to become introspective and correct the previous violations of the constitutional rights of those in Middleborough.

This will lead to future reversals, and future lawsuits in the nature of civil rights violations. All this nonsense is a costly process -- costly to the taxpayers of Middleborough.

What did it cost to twice appeal the dog hearing--and what will it cost if they decide to appeal it again. Will they subject themselves to a civil rights action, or will they be charged with costs and attorney fees if they lose?

I am glad that the Chair has decided to bless the reversed process. It will make me feel better the next time that my rights are violated.

A possible Set of Hearing Rules to Adopt for Future Hearings

2009-10-16T18:02:00.003-04:00

BASIC HEARING RULES FOR THE BOARD OF SELECTMEN

NOTICE
(a)Any person entitled to notice of a hearing shall be given timely notice of the time, place, nature thereof, the legal authority and jurisdiction under which it is to be held, and the subject matter of the hearing, including but not limited to, any complaints filed, any evidence to be presented, and witness statements gathered, and any recommendations or reports produced.
(b)In the absence of provision by ordinance, bylaw, or by rule for the time of notice, ten (10) days notice shall be deemed reasonable and timely.

Fixing Time and Place of Hearing.
(a)In fixing the time and place of a hearing, due regard shall be had for the convenience and necessity of the parties and their representatives.
(b)Except when otherwise provided by ordinance, bylaw, or by rule, the time and place of hearing shall be fixed by the Selectmen, by the Chairman or his designee.

Authority of Presiding Officer. The Chairman shall have authority to:
(a)Administer oaths and affirmations.
(b)Authorize the issuance of subpoenas, if the power of subpoena is provided by law.
(c)Rule upon offers of proof and receive evidence.
(d)Regulate the course of the hearing.
(e)Set the time and place for continued hearings.
(f)Fix the time for filing of papers, documents and briefs.
(g)Require any persons intending to speak at the hearing to register with the secretary their names and addresses, and, where applicable, their support or opposition to the subject matter of the hearing.
(h)Issue appropriate orders which shall control the course of the proceedings.
(i)Announce the rulings on motions and procedural matters.
(j)Reprimand or exclude from the hearing any person for any improper or indecorous conduct.
(k)Take any other action authorized by law.

Burden of Proof.
(a)In any quasi-judicial hearing, except as otherwise provided by law, the burden of proof shall be upon:
(1)The proponent of an order;
(2)The applicant for any license, permit, privilege or right;
(3)The complainant in any proceeding for cancellation, suspension or revocation of any license, permit, privilege or right;
(4)The party appealing from any decision of an officer, department, or commission of the Town of Middleborough;
(5)In any case, not otherwise herein provided for, the party initiating the proceeding.
(b)Except as otherwise provided by law, the burden of proof shall be a preponderance of the evidence.
(c)Nothing contained in this section shall affect or negate any provision of a statute requiring the vote of a specified number of members of the Board of Selectmen upon a decision.
Rights of Parties to Present Evidence.
(a)Every party to a hearing shall have the right to present his case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(b)Every party to a hearing and every person compelled to testify or to submit data or evidence at any hearing shall be entitled to the benefit of counsel.
(c)In any hearing in which a record is made, every party to the hearing shall be entitled, upon payment of reasonable charges therefore, to obtain a copy of the transcript of the record.

Order of Procedure.
(a)Except as otherwise provided by statute:
(1)At the opening of a hearing, the presiding officer shall announce the nature of the hearing, the parties thereto, the legal authority and jurisdiction under which it is held, and the subject matter thereof.
(2)The agency shall hear and determine any objections to the jurisdiction, or to the form or substance of the proceedings.
(3)Opening statements may be made or waived by any party to the proceedings, or such opening statement may be reserved to a later time in the proceedings.
(b)The order of presentation of evidence in any proceeding concerning an application for a permit, right, privilege or license, shall be:
(1)The applicant and all persons in support of the application;
(2)All persons opposed to the application;
(3)All other persons entitled to be heard.
(c)The order of presentation of evidence in a quasi-judicial proceeding other than an application as described above, shall be:
(1)The party having the burden of proof;
(2)The responding or opposing party;
(3)All other persons entitled to be heard.
(d)Any witness testifying in a hearing shall be subject to examination or cross examination by any party, counsel for any party or any Selectman.
(e)Any party to the proceedings shall be afforded the opportunity to rebut testimony or evidence of another party, if request therefore is made during the hearing and such party is ready to proceed therewith without delaying or obstructing the hearing.

Decision.
(a)After the close of a public hearing, the agency shall render a decision within the time provided by law, or within a reasonable time.
(b)Such decision shall be reduced to writing and communicated to all parties to the hearing.
(c)The time for application for rehearing or appeal of any decision shall begin to run from the date of the decision.

The Decision

2009-10-13T14:49:00.002-04:00

Dog Execution Bagged by Judge for 2d Time

2009-10-10T09:10:00.005-04:00

The Clerk Magistrate previously reversed the order of the BOS which ordered Kane the pitbull (who was in an altercation with a horse), to be executed. After Kane escaped the BOS order at the clerk magistrate level, the BOS decided to expend further time and money to appeal that order to a Judge of the District Court.

On October 9, from 9-1PM a hearing was held before a Judge, where the Town had the burden of proof and they put up three witnesses (the ACO, the only precipient witness to the event, and the horse owner). I was entitled to cross-examine the witnesses on the Town's case. On the Town's case, it was established without dispute that:

1. The Defendant was not given a copy of the complaint, a copy of the relevant law, the BOS has no written rules and procedures for hearings, has no written standards for making determinations in dog hearings, they did not give the Defendant copies of the report and reccommendation of the ACO, they did not give him witness statements against him, they did not give him any notice of the consequences of the hearing, and they provided him with very short notice of the hearing.

2. The Judge also bristled at the fact that the only precipient witness for the Town was not at the hearing, and simply submitted a written statement that could not even be cross examined. Additionally, it did not seem to sit well with the Judge that even that statement did not get heard until AFTER the BOS had acted on Mimi's motionand ordered the dog killed.

When the Town rested its case, I moved for what is the equivalent of a directed verdict in a jury trial. I argued that due process was violated, that proper notice was not given, and that the Defendant was denied the right to a fair hearing and the ability to prepare a defense. Town Counsel argued, essentially, that the Constitutional standards that I was relying upon did not apply to this statute. My reply was that every law and statute are imbued with Constitutional requirements, and if you fail in your Constitutional obligations, any action taken under the statute is fatally flawed. The Judge granted my motion and the de novo hearing ended with a victory for Kane the dog. This means that the BOS absolutely violated the Constitutional rights of Eric Bagge and each citizen treated in the same way--shame om Pat, Mimi and Al--the other two voted against the holding but still did not see the problem.

What does this all mean? Well, Mimi Duphily was there and Steve McKinnon was there. Maybe this means that the BOS will finally adopt some rules and procedures that serve to protect the rights of the citizens of Middleboro. I know that Steve has tried--twice-- to get the BOS adopt rules and procedures--which DIED FOR LACK OF A SECOND!!!!!

Maybe now Mimi Duphily --who I absolutely regret having supported--will be that second since she saw the problems that the Judge had with the BOS lack of procedures. Remember BOS, you are the protectors of the community--not the prosecutors. Think about the constitutional rights that you are REQUIRED to protect, and not your own power trip. A response like "I hate god damn lawyers" solves nothing and makes you small.

If things stay the same, then the BOS will arrogantly try to find a way to further appeal this non-appealable ruling (at the taxpayer cost). If things are to change, perhaps the BOS could remove the fog of absolutism from their tinted glasses, and realize that the changes to be made to correct this grevious error is cheap, simple, and gives long lasting returns to the entire citizenry of Middleborough.

We should all wait to see which way they choose to go. It will tell us a lot about who they represent.

Been Thinking...

2009-09-02T17:45:00.002-04:00

I've been thinking about the BOS and their "basis" for believing that the Wampanoag letter gives sufficient guarantees that the money the BOS wants to spend won't be demanded back. Charlie said he spoke to counsel, and counsel said he was satisfied. Al Rullo said he wasn't sure, but it seemed to him, from what Charlie said counsel said, that the Town was protected.

So let's see...based on a discussion that Charlie had, that we know nothing about and the contents of which are a mystery to everyone; and based on Charlie's interpretation of what counsel allegedly said to him; and based on Al Rullo's "understanding of what Charlie told him the conclusion of the conversation was, that Al was not a part of...the BOS is comfortable with that weasley and deceptive letter that the Tribal Leaders sent that contradicts what Cromwell said at the original April meeting. Makes wondorous sense to me in an Alice in Wonderlan sort of way.

Makes me really want to see counsel put that opinion in writing for all to read and see. I hate to rely on double hearsay...since it is just like a game of telephone. Maybe someone wants to show a semblance of inteligence and get a WRITTEN opinion from counsel BEFORE we move forward and spend the money!

Not only do the laws of physics cease to exist at the entrance to the BOS meeting room, but apparently, so do the laws of logic and just plain common sense. Stunning!

Countdown to Oblivion?

2009-08-25T13:58:00.002-04:00

I was considering last night's BOS meeting where they see things in letters that don't exist, and act on those delusions with little more than lip service to the issues raised in debate. Then I asked myself..."Self...does it really matter?"

In my existential pursuit of whether it matters or not, I came across an entry in Reelwamps that references an expiration date for the deal between the investors and the Tribe. I didn't want to believe a blog, so I looked at that agreement, and sure enough, there is a deadline for the Tribe to get its required approvals (read in here approval of the LIT application). What is the date you may ask...it is redacted. However, the Reelwamp site says that the date will pass in days. For those of you that have the agreement, it is Article 11, Termination, Section 11.2, Failure of Tribe to Obtain Required Approvals. "The failure of (i) the Tribe and/or the Authority to obtain Required Approvals by ____________ ...shall be grounds for termination of this Agreement by the Developer upon written notice to the Tribe and/or authority."

How happy are the investors/developers at this moment in time. The Tribe refused to reaffirm the agreement with the deveopers, the developers have cut off all funding to the Tribe, and the developers won't pay for the completion of the Environmental Survey needed to complete the EIS. Doesn't look good for the Tribe and their LIT, and it doesn'tlook like any Carcieri fix will be in within "days."

Meanwhile, at home, the BOS is voting to spend pre-opening planning money (without the assurances demanded by FinComm or at least one member of the BOS). Does it all really matter in the long run? If we don't get sued for the return of any funds...no it does not. But it is a shame that the BOS did not rise to the moment and act in a responsible and prudent manner.

Oh well. Live, learn, and let's see if this actually is a countdown to oblivion for the resort casino in Middleborough. It's a shame. It could have been nice.

Weasle Words and Forked Tounges

2009-08-24T12:06:00.004-04:00

O.K. Let's put aside that the Tribe Leaders came to the BOS back in April, and stated that the Town would not have to refund any "past amounts." Review the tape. Let's also put aside that the Town asked for the letter confirmation on July 16, and only received a response more than one month later.

The focus should be on what precisely has been said by the Tribal leaders in their weasley three paragrapgh letter--which should simply have said: "Under no circumstances shall the Town of Middleborough be required to refund any sums of money paid to it pursuant to Section 5 of the IGA and in the nature of pre-opening mitigation planning monies." Pretty simple statement and no loop holes. But what did we actually get after a four month, inexcusable delay by the Tribe?

Regarding Past and Proposed Projects

Paragraph 1 of the letter impliedly acknowledges that we have sent the Tribe a list of projects done and projects planned (which we did in order to get their blessing). The Tribe DOES NOT however do anything to confirm that those projects are actually what they believe complies with the terms of the IGA concerning the spending of the Section 5 monies. GAPING HOLE!!!!! That was the point of sending them the latter with the "accounting" of projects--and as we will see in a minute, it is very important to the Tribe that the money be spent "according to the terms of the Intergovernmental Agreement."

The Three NEW Conditions to NON-Refundability

Paragraph 2 of the Tribe's letter is the most weaseley of them all. Let's break down the relevant portions. Remember, the simple answer that Cedric Cromwell previously gave was that the "past monies" will not need to be refunded, and he placed NO qualifications on that statement. Now, after the lawyers got done with him, he says:

"As I indicated when I spoke to the Selectmen recently, the Tribe has no intention of seeking the return of monies provided by the Tribe that were spent by the Town according to the terms of the Intergovernmental Agreement."

Let's flip this over and look at its underbelly. The TRIBE (not the investors) will not seek the return of the monies if:
1. Those monies were provided BY THE TRIBE to the Town;
2. The subject monies were SPENT; AND
3. The spending of the monies was ACCORDING TO THE TERMS OF THE INTERGOVERNMENTAL AGREEMENT.

These are three cumulative conditions to non-refundability.

1. Money Provided by the TRIBE to the Town

Not ALL the checks received have come from the Tribe. This is important, since recently it was said that the last check came directly from the investors--not the Tribe. If true, then that payment does not meet qualification number one ("provided by the Tribe"), and is certainly within the realm of being demanded back. The BOS should send that check back to the investors, and tell the investors to give the Tribe the check and have the Tribe reissue a check to the Town. On the other hand, the investors could simply confirm in writing to the Town the non-refundability of such monies.

2. Money Must be "Spent"

All unspent money would be refundable to the Tribe, since those unspent funds do not meet the condition of "spent by the Town." So anyone who believes that there will be any windfall is wrong. Also, spent implies a cash basis accounting, and any long term liabilities that are accrued would be eaten by the Town, if all unspent monies are returned before all long term liabilities which have accrued have come due.

3. Spending Must Be According to the IGA

Finally, the biggest part of this farce called a confirmation of non-refundability, is that the Tribe has said refundability will depend on whether the spending is "according to the terms of the IGA." This leaves open the argument that if the BOS spends it in a way that the Tribe can claim violates the IGA, they can demand the money back.

Someone on the BOS, pleeeeese read the IGA. Please look at the definition of "the Project." Pleeese wrap your minds around what the IGA says, and not what you think it says or the past practice. Limit the spending to the narrow definition, which DOES NOT include paying the OECD department head for marketing issues, or doing studies at Everett Square, or studying a police station at St. Luke's. It has to do with development and improvement of "the Project Site" -- another defined term in the IGA.

The BOS asked the Tribe to confirm the proposed projects in writing, and they refused to do so in their most recent letter. The BOS either needs to not spend the money until there is a written confirmation that the proposed and past projects ARE "according to the terms of the IGA" or the definition of "the Project" needs to be renegotiated to include those projects that are being contemplated.

Conclusions to Draw

What you have is a Tribal leadership that has reneged on its agreement with the investors, already violated the terms of the IGA on several occasions, and now has used lawyers to draft a three paragraph letter that says nothing, and avoids saying that "Under no circumstances shall the Town of Middleborough be required to refund any sums of money paid to it pursuant to Section 5 of the IGA and in the nature of pre-opening mitigation planning monies."

Middleborough cannot afford any further mistakes at this juncture, as a mistake here could bankrupt the Town.

Just my opinion.

The die is cast...

2009-06-26T17:17:00.004-04:00

This was the answer to my request for any document reflecting theMashpee Wampanoag Tribe's agreement that the pre-mitigation planning monies would not be refundable by the Town, should the resort not become a reality.

Well, now, at least we know that the BOS was not asleep at the switch for more than just a couple months, and were not lulled into complacency by the mere verbal promises of the Tribal Chair. While it may be the custom of some native americans to work off a hand shake (although these native americans wanted a written IGA--go figure!), I am glad that the BOS will now ask for the agreement in writing. A bird in the hand is better than birds**t in the hand.

Thank you to the BOS for acting to protect the Town.

Never In My Wildest Dreams...

2009-06-25T17:32:00.004-04:00

The level of ignorance of the IGA displayed by Mr. Perkins is indisputable in my opinion, since he apparently has not actually read and understood the deal in which he inaccurately claims to have been a chief negotiator. (As he knows, he actually didn't even see the inside of the conference room where the negotiations I was involved in took place--were there others Wayne?) In any event, the Emptyprise reports: "Former Selectman Wayne Perkins, who was a chief negotiator in the agreement, was at this morning’s meeting as well. He told the Enterprise afterwards that he doesn’t think the town needs such a guarantee, since it is already covered in the current agreement."

The only part of the quote I agree with is that "...he doesn't think...." Refundability of the monies is NOT covered by the IGA, and Wayne, please educate us and simply comment on this blog with the Section of the IGA that does cover refundability of the planning monies. Should be simple, since "it is already covered in the current agreement."

Put aside the fact that the IGA actually does not cover the refundability issue. Why wouldn't you cover the Town's interests WITHOUT ANY QUESTION by demanding -- not a guarantee -- but a written clarification, amendment, or whatever you want to call it, signed by the Chairman of the Tribe. This is how the IGA requires a verbal confirmation to be legally enforcable. Does Wayne like to live dangerously--at the Town's risk? If it is already covered by the agreement--which it is not--why would the Tribe even resist giving such a signed document--unless they don't have the same opinion. Aren't we all neighbors and friends here? Simple request, it need be no longer than two sentences and signed by the Tribe. If it is covered, no harm no foul. If it not covered, we get what we have been promised in writing and in a legally enforceable form.

Wayne's comment is simply foolish and foolhardy, and is consistent with the man that claimed "Never in my wildest dreams did I ever believe the Tribe would buy the land." After the Tribe sues in equity for the monies back, it will be a great consolation to know from Wayne that "Never in my wildest dreams did I ever think the Tribe would want the money back."

Stop thinking of the Tribe for once and please start covering the Town's collective and very exposed ass--whether you think it needs it or not!

Here is the section:

"Within ninety (90) days of executing this Agreement, the Tribe shall pay
annually, using the Fiscal Year of July 1 to June 30, to the Town the sum of $250,000 for the purpose of mitigating the Town's staff and outside consulting costs for supporting the planning, development, and coordination of the Project, excluding costs relating to offsite permit issuance by the Town. The Town shall provide written certification to the Tribe that the Pre-opening Mitigation Payments in this sub-section are utilized for these purposes and, if requested, copies of detailed invoices of outside consultants. The payments shall continue annually thereafter until the date that Annual Impact Payments described in Section 5.C commence. The Tribe's payment shall be prorated for the first and last years."

I don't see refundability addressed at all. That leaves it an open question, and how attorneys love to litigate open questions.

If It Ain't In Writing, It Don't Exist.

2009-06-22T08:49:00.003-04:00

Remember a few months ago when Cedric Cromwell and his crew came to Middleborough for a love fest with the BOS--instead of a serious and real talk about what had been happening in the news and what the future of the project would be? Remember the BOS asking of the Pre-planning Mitigation monies ($250,000 annually) would be refundable to the Tribe if the project did not go through? Remember how Cedric said the past payments would not be refundable to the Tribe?

Well, that is all well and good, but as I understand it, almost two months later we still don't have that in writing signed by the Tribe. If it ain't written, it don't exist! In fact, the IGA specifically states that the agreement cannot be modified without a writing signed by the parties to be charged.

The BOS is too trusting of the Tribe that is already renogotiating with the investors--amusingly for the same reasons that the BOS was being asked to do the same thing back in December of 2008, with a letter from BOS counsel saying a discussion was an intelligent thing to do quickly in light of the Marshall indictment. The Tribe has no problem "kicking" their partners--but Middleborough has a higher collective wisdumb that defies the standards of complex commercial transactions, even where the IGA specifically states that Middleborough and the Tribe are NOT partners.

The BOS don't feel the need or urgency of getting a waiver of a refund in writing, signed by the Tribe. Let's trust the Tribe to do what's right, and let's just sit and let the taxpayers absorb any loss or litigation costs. "We don't need no stinkin' rules, or any promises in writing--were the Middleborough BOS and we know better." There is just no learning from past mistakes.

I have asked around, and my understanding is that Charlie intends to send a "confirming letter" to Cedric about the non-refundability of the funds. Good effort, but read the contract and notice that a confirming latter is not what we need and is probably insufficient. We need a signed letter from the Tribe, with the RIGHT language.

I don't think that Cedric should have a problem with that--since he and Aaron told me that they were going to have a letter to this effect to pass the BOS back in April, but they couldn't get the language finalized with their lawyers for the meeting. They also seem very content not to provide one until the BOS demands one.

It must be some complicated language (to say a very simple thing), since there still has not been one provided to Middleborough for almost two months. Maybe this has been an oversight--like the Tribe failing to include Middleborough in the letter to the Governor--or maybe Middleborough can't trust this new crew any better than the last crew. This is a simple matter and the Tribe won't act until pushed. Consider this my push, because the lack of an appropriate amendment to the IGA certainly would be a good reason, with this Tribe's history, to quickly become anti-Middleborough casino.

Certainly food for thought.

Reprieve For Kane the Dog -- Bigger Ramifications

2009-06-05T11:29:00.002-04:00

I represented the owner of the dog that was ordered to be euthanized by the BOS for his attack on a horse. There are only TWO bases for a reversal of the BOS order: 1) that the order was an improper order; and 2) that the order was issued in bad faith.

My argument was the following:

1. That there was no fair hearing because the BOS has no rules for hearings and the taking and presenting of evidence. The BOS letter confirming that fact was placed in evidence.
2. The hearing was done by ambush, as none of the evidence to be presented was given to the dog owner prior to the hearing, and the motion to euthanize was made and accepted prior to the hearing being closed, and before the owner was able to present further evidence.
3. The order was in bad faith as it ignored the reccommendation of the ACO, was baased on the presonal prejudices and irrelevant experiences of two Selectmen relating to a dog that was not the dog at issue.
4. The order violated the Mass General Laws regarding the killing of a dog that has worried or killed livestock or fowl. There are specific rules in place and steps and protections to be followed, which the BOS ignored.

Today, the order to euthanize the dog was reversed, although there was no indication which ground, or whether both grounds were the basis of the reversal of the BOS order.

At a minimum, it was my impression that the lack of rules for a hearing as well as the lack of disclosure to the owner of the evidence against the dog prior to hearing was a factor in the reversal. Nobody likes a process without rules and well defined protections for the people appearing before a Board--except our BOS.

Today it is the reversal of a dog order, tommorrow, it may be the reversal of a more significant order based on the lack of due process and the lack of any procedures. Isn't it just easier to put some rules in place and to foster fair hearings rather than hang on to some outdated concept of a benevolent dictatorship. Food for thought.

We Don't Want No Stinkin' Rules

2009-05-06T09:38:00.004-04:00

Well, it seems that the BOS not only admits that there are no written rules for the hearings and decision making process, but they affirmatively do not want any. So where does that leave us? There is no way for anyone appearing before the BOS to know the procedures for addressing their issues, because the BOS wants “flexibility”—another name for the ability to be arbitrary and capricious. The major problem with this is that the Constitution does not permit a BOS to act in an arbitrary and capricious manner in deciding matters that could deprive citizens of their property.

Take, for example, the dog hearing where Duphily—in the middle of the hearing--stated her preference to put the dog down. Rogers immediately asked if that was a motion, and it was seconded. Rogers was simply frustrated, and wanted the hearing over, and the motion that he prompted essentially ended debate by the dog owner. Under Robert’s Rules, or whatever parliamentary procedure the BOS has followed to date, a motion is not permitted until the hearing is closed. This allows all evidence and debate to come in first and come to a conclusion, before any motion is made. Here, without rules, Rogers has the ability to simply cut off the debate (because he is bored), and jam a motion forward to the detriment of the citizen’s right to debate or offer more evidence.

Due process of law is to protect the citizens—not the BOS. It is intended to force the governing body to have a set of rules that everyone can access, and to which everyone can refer, in order to hold the BOS to the fairness standard. So, when the BOS says they don’t need no stinking rules, they are really saying we run the meeting the way we want, and there is nothing that you can do to challenge that.

As to Charlie Cristello, I am surprised that he would support the lack of ANY rules to govern the BOS and its decision making process. I know that Harvard is a liberal hotbed for anarchy, but to say he doesn’t know of any Selectmen who have adopted Robert’s Rules is simply to admit that he did not go online and do his research.

Al, didn’t they have rules at the fortune 500 or fortune 100 companies where you worked. Seems to me that lack of rules yields chaos, and that chaos yields losses.

To contradict Charlie, keeping mind that various BOSs do adopt written rules, such as Billerica has adopted Robert’s Rules for their Selectmen, and states that their bylaws can override the mandates of Robert’s Rules. They wrote some rules and adopted Robert’s Rules—and all of them can be found in writing by the citizens. Nantucket prominently notes on a document called “Board of Selectmen Agenda Protocol: Robert’s Rules. The Board of Selectmen follows Robert’s Rules of Order to govern its meetings as per the Town Code and Charter.” Medway actually uses Robert’s Rules in a more limited fashion (i.e., in order to maintain more flexibility), and states that “Robert’s Rules of Order is used a a guide in matters requiring clarification of definition.” Just as an interesting side note, the Bylaws of the Massachusetts Selectmen’s Association also designates Robert’s Rules of Order as the guide for all meetings.

So Charlie, what is it? You don’t like people to know how the game is played before they appear before the BOS? You always said you want to put together policies and procedures that are available to the public for guidance. Why not start here and make the BOS conform to constitutional mandates?

And just one more bone to pick with you Charlie…how can the TM be “drafting” the contract of employment for anyone in Town (as reported in the Enterprise), when the Town Charter expressly states that:

"Town Counsel SHALL draft all...conveyances and other legal instruments..." Town Charter, Legal Affairs.

We had this problem with Jack before you, where he drafted all kinds of documents, and (in my opinion) screwed them up at great cost to Middleborough. You have DM and you have LP, use them for drafting and follow the Charter—or do we not follow that set of rules either.

It's A Dog's Life

2009-04-29T16:51:00.002-04:00

Comic Contribution

2009-04-28T08:06:00.001-04:00

It's nice to know there is still a sense of humor out there.

No Rules: Part II

2009-04-27T10:11:00.003-04:00

So now we have a definitive answer...The BOS has no adopted rules of procedure. This bugs me why? As a member of the public, appearing for a hearing, I am subject to the arbitrary and capricious whims of the BOS. I don't care what their past practice is, since practices change as Boards change. How do I know what my due process rights are, unless I know the rules that apply? Can I speak during a hearing, or can I only speak if I don't piss off the Chair? Why does the Chair have the right to decide, since there are no rules that define his powers? Who says you need a second to discuss a motion, or that you must conclude a hearing before taking a motion? There are no rules...the Board's Secretary has said so.

Let anarchy and arbitrary and capricious decision making prevail. Maybe one of the new guys should re-make the motion Steve made on his first night. Go ahead...there is no rule in place to stop you.

Two immediate questions that arise from this admission:

1. Is the lack of rules a due process violation? In other words, is the Fifth Amendment right to due process violated, where there is no process in place, yet the BOS makes decisions that deprive you of property...e.g., like taking the life of your dog?
2. Does the lack of rules invalidate prior decisions by rendering them arbitrary and capricious?

The BOS needs to adopt rules for the sake of those in the public who appear before them, so that the public can have a expectation as to how the meetings should run, and a comfort that such rules will be enforced the same way for all people appearing before the BOS, without any discrinination.

Kudos to Steve and Al

2009-04-15T08:44:00.003-04:00

Although the meeting with the Tribe was pretty plain vanilla, I must give credit to both Al Rullo and Stephen McKinnon. Both men asked on-point questions and had good follow up questions. Al is clearly an independent thinker, and I loved the discussion that he and Steve had regarding the interview process of the next Chief of Police. Good going guys! Maybe the other three will take your lead.

Ask Twenty Questions About the Casino

2009-04-08T19:48:00.003-04:00

I was on the BOS during the entire Resort process, and I kept track of what was going on--to the extent that I could. Selectmanship restricted my ability to discuss the issues fully...but behold, I am no longer bound by the Jacob Marley chains.

I want to try something novel. Twenty people ask twenty questions about the casino issues (e.g., who first had the idea, what happened between the first and second deal, etc...), and I will do my best to answer the question fully, say I don't know, or decline to answer. The first twenty questions placed on the blog will get answered IN WRITING on this blog. But be patient, I do have other things I do for a living and I will try to answer as quickly and completely as possible.

Have at it. But be careful what you ask, since you make not like the answer that you get.

If this works out, we can do another 20 questions.

Adam M. Bond

UPDATED: The More Things Change, The More They Stay The Same

2009-04-08T09:14:00.003-04:00

UPDATE:
I have sent the following request today. They have until April 20,2009.

I just came back from the Town Clerk's Office, and she says there is nothing in the Charter or the By-Laws that dictates how the Selectmen's meeting is run. So, as far as the Town Clerk knows, there are no rules that govern the meeting. Let's see what the Selectman's Secretary has to say.

Additional Points of Discussion With The Tribe on April 13--What's Wrong With a Few Questions between Friends?

2009-04-07T12:32:00.001-04:00

The meeting with the Tribe on April 13 is a waste of time, solely for the purpose of some PR and gald handing. The BOS is already behind in the race for leverage in this deal, and should have been meeting with the Tribe long ago to come to some productive adjustments to the deal. Now, the US Supremes have ruled, and the Tribe is lining up its ducks to be able to tell Middleborough that they need to change the deal by shaving off some of their obligations.

Rather than shaking handsAdditionally, things to raise with the Tribe at the April 13 Meeting.

1. 2% of net game of all casino games (in addition to the $7-9M + CPI payment):
This is incredibly important and runs with the "expectation of further remuneration" aspect of both the IGA and the written letter of support to the BIA. The 2% would be guaranteed by the Tribe, and offset if the State provides Middleborough with the 2%. The Tribe is then incentivized to use its significant leverage with the State to get Middleborough the % it was promised.

It is incredibly important that the 2% received from the State be defined very meticulously and in great detail. For example, if the State pays a real 2% to Middleborough, then there is an offset. If the State pays the 2% to Middleborough, but uses that same payment as a basis for reducing State aid to Middleborough, the the Tribe must make up the difference. The best way for this to be done is for the Tribe to negotiate into the compact (where Middleborough should have a right to be present), an agreement that any % payment to Middleborough coming from the State is exempt from any calculation of State aid to Middleborough, and the percentage cannot be reduced or eliminated by the State (since that would cause the Tribe to foot the bill.

2. Requirement that the Tribe purchase a $10,000,000 insurance policy for tort liability, and require AAA Arbitration of all tort claims relating to non-indians on the premises. This would cause the sovereign immunity issue to be reduced, since non-indians would have the ability to turn to neutral arbitrators, rather than Tribal courts, to obtain recompense for injuries to person. Many Tribes out west do this to assuage fears relating to sovereign immunity.

3. The CPI increase in the $7M payment should be made retroactive to the date of signature, since the representations made in the negotiations were that the resort would be completed relatively quickly (18-24 months), and each year that passes costs Middleborough more money. The CPI also should reflect the greater Boston area.

In return for the 2%, the BOS should offer the Tribe access to two specific local roads ONLY until the completion of Rte 44. The Tribe, under the current IGA, is NOT permitted to use any local roads once operations commence. This will force the State to deal with a Tribal Compact, as the project would no longer be dependent on whether Rte. 44 is completed in time. In other words, Middleborough giving up the local roads issue (in a very limited fashion, and only for a limited time), would incentivize the State to deal with the Tribe as some of the State's leverage in negotiations would be gone.

The More Things Change, The More They Stay The Same

2009-04-07T11:26:00.008-04:00

Looks like the new BOS is off to a momentous start. Mr. McKinnon moved to have Robert's Rules of Order be the Rules adopted by the BOS--no second to that motion. Under Robert's Rules, that would mean that the motion fails. But what rules apply to the BOS--apparently, whatever the heck Rules they want. I have not seen any written rules that have been adopted by the BOS--something that the School Committee does each time they reorganize. Why are the rules of order significant?: "Rules of order, also known as standing orders or rules of procedure, are the written rules of parliamentary procedure adopted by a deliberative assembly, which detail the processes used by the body to make decisions. Rules of order consist of rules written by the body itself, but also usually supplemented by a published parliamentary authority adopted by the body." --Wikipedia There is not just one set of rules that everyone uses. According to Wikipedia: "In the United States, most state legislatures follow Mason's Manual of Legislative Procedure. The United States Senate follows the Standing Rules of the United States Senate, while the United States House of Representatives follows Jefferson's Manual. Most other deliberative assemblies follow Robert's Rules of Order. US organizations dedicated to promoting the general use of parliamentary procedure include the National Association of Parliamentarians and the American Institute of Parliamentarians. In the United Kingdom, Thomas Erskine May's A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament (often referred to simply as Erskine May) is the accepted authority on the powers and procedures of the Westminster parliament.In Quebec, commonly used rules of order for ordinary societies include Victor Morin's Procédures des assemblées délibérantes (commonly known as the Code Morin[1]) and the Code CSN." The point may be small, but it is this: Steve made a reasonable motion, in order to make sure that everyone participating, as well as everyone listening and watching in the cheap seats would know what rules apply. Written rules adopted by the BOS! What rules has this BOS put in writing and adopted, and at what point will they change them or stray from them for the purposes of their own agendas. If they are not written, then how do we know when they have violated them or our individual rights when we appear before them. We don't, and they like it that way. If they generally follow Robert's Rules, then why is it that they wouldn't second the motion or simply state that they follow Robert's Rules. Why...because they are already in the process of doing what they can to shut Steve down before he has even gotten started. I am surprised at Al. Why no second from you? Don't you want to know the rules of the game? I know I do. Let the games continue.

Is This The Shirt You Meant?

2009-04-06T16:25:00.009-04:00

I thought you had a good thought, which is worth a thought...I thought. Who wants one.

Take an idea. Compare that idea to the one idea in which you have no doubt. Then without a doubt...you have enthusiasm!!!!!!!!!!!!!!!!!! Sorry. I been around too much who dust.

Middleborough Election--Friends and Foes

2009-04-04T22:31:00.004-04:00

Well, it seems to be that the Friends cadidate is history, and I move that we send Mr. Spataro a letter for his years of service. Perhaps that letter should be an "F."

Wayne Perkins only won by 43 votes and a prayer. I hear that's because he was going to have a man of the cloth at Town Meetings to give a benediction. You see, that puts God on his side. Wonder how that would work out in the face of a motion for an injunction. Wayne, I love ya...but learn when it's time to hang it up. Fishing sounds good about now.

All I know is that Steve McKinnon got the three year seat, and that looks good for Middleborough. Al, I have no judgment of you, but I will take you at your word that you are an independent voice and will support you until you prove otherwise. Come for an interview on the show, and lets have a little Coffee Shop Talk.

The Infamous "Adam Who?" Button Surfaces

2009-04-04T16:31:00.004-04:00

The Button! The Button! It has finally surfaced! It is not really this pretty...I just enhanced it with my own personal touches to at least make it worthy of mention.

Any way...I have made it to the Big Leagues. Adam Bond paraphanalia and memorabilia finally exists! This is a fantastic advance in my self esteem (as I have now, as Steve Spataro says, acheived my 15 mins of fame). However, I am worried about the minds that conjured the concept (particularly the black and white color scheme). Please note that they have the chutzpah to wear them...but not the generosity to give me one...just one freaken button!

I even heard that BB had asked for one, but that they--they who?--took a vote that he couldn't have one, unless Helen said it was O.K. Helen who? Who took a vote? A vote...are you kidding me? Recount...Recount...I want an Al Franken freaken recount!!!!!

In fact, I was told by another gentleman that you could even see them if you go to Willy's Auto Supply, where the owners will proudly display one for you. Auto supplies and Adam novelties--a powerful inventory in any recession. Glad to help.

Dominique D'Angelis from Oak Pointe was seen wearing one while holding signs for the Friends' candidate picks for this election. Their candidates must share the same view and choice of method as must all their Friends--is that who voted? I kid you not...voted!

C'mon guys...you don't have to act like Friends, instead, you actually could be sports and just share one button--just drop one in my office mail slot. If it makes you more comfortable, you can do it on a dark night when you won't be seen (except by the security cameras). I am certain that the shadows become you all.

By the way Mr. Spataro, where is the vote to send me a letter for my years of service to the Town. I must have missed it...but I don't think it would have passed anyway. I mean a guy can't even get a freaken button around this Town (or should it be town--that's right, who cares?).

Love and kisses to the button maker and your Friends,

Adam Who?

Last Minute Thoughts

2009-04-03T17:09:00.002-04:00

Vote! Vote! Vote!

McKinnon
Stevens
Beaulieu

An infusion of new perspective and a move away from the historic entrenchment may not solve the problems, but it sure may help all of us identify them. We need debate, as much as it may make everyone uncomfortable. We need that interaction between voter and official. Don't let the rest of us make the choice for you--make your own!

I don't want the government everyone else deserves. Vote tommorrow!

"The "Geniuses" that negotiated the agreement..." -- Candidate McKinnon

2009-04-03T12:11:00.005-04:00

After going back and listening to the show from yesterday, this is the phrase that was used by Candidate McKinnon. Go back and listen, and by the way, there is no delay button in the studio.

Hope this clarifies this manufactured issue, since it only seems to be an issue that has come up between "Friends." Don't hurt yourselves actually trying to address the issues or substance. To do that would take an attention span. Just keep looking at the pretty pictures and shiny objects.

Spataro Apparently Reveals a Town Breach of The IGA

2009-04-01T20:21:00.006-04:00

First go to http://nemasket.net/media/audio/BOS/Selectmen-2009-03-30-PinnacleHotelStudy.mp3.

This is where Spataro lauds a consultant report on the potential for hospitality businesses coming to Middleborough. He then states that Middleborough used casino planning money for the study. He then finishes that it is a concept that is not part of the casino project.

Which is it Steve? The report is part of the Pre-Opening Mitigation or it is not? You say it is not but you used the money anyway. Is this what you really mean, or do you, once again, not know what it is the Town signed? I suspect you just don't know what you are saying, and that the consulting report actually is being paid for by casino planning money because the casino will potentially bring hospitality business.

If you really mean what you have said (and I sure hope that you are not that careless a Selectman), then the Town has breached the IGA, Section 5(A), entitled "Pre-Opening Mitigation-Planning." Did you read it? If not, let me help you out. The key language states that the annual $250K/year shall be for the "purpose of mitigating the Town's staff and outside consulting costs for supporting the planning, development, and coordination of the Project...." But you say "its not tied to that"--meaning the Resort Casino, or the Project.

So, as I said, Mr. Spataro either did not know what he was saying in response to Mr. Giavanoni's question, or he is revealing that the Town has improperly used funds from the Tribe to pay for non-Project oriented consulting. I'll bet on Steve being ignorant before I would ever accuse him of being dishonest.

I am just glad to see this BEFORE the Saturday election.

House Resources Committe Webcast

2009-04-01T11:54:00.004-04:00

This was an absolutely fascinating discussion to watch. This was very educational, and I suspect that each and every one of our dedicated Selectmen gave of their time to listen to experts (some with a definite bias) discuss the ramifications and possible solutions to Carcieri.

I must say that, of the three witnesses testifying, I appreciated Attorney Mitchell's testimony the most. He really did seem to be the only one with no dog in this race. It also seemed like many of the panel members were asking questions prepared by their clerks, and not really up to date on details--but this seemed more of a preliminary meeting than anything else.

I hope that members of this debate in Middleborough all watched.

P.S.: One of the more interesting questions raised was what happens to people convicted of federal crimes based on acts committed on Indian land where the Tribe was not a recognized Tribe in 1934? There was no federal jurisdiction on that case, so do those convicts have a basis for reversal of the conviction due to lack of subjectmatter jurisdiction? I know it has nothing to do with the casino, but it sure was a fascinating question.

QUESTION FOR OUR "PARTNERS"

2009-03-31T16:24:00.003-04:00

The Board of Selectmen intends to meet with the Tribe on April 13, 2009, but refuse to allow any public participation in the meeting. I guess the rest of the cheap seats have no right to address the "saviours" of the Town. God help us...we will have to rely on the Board to ask the intelligent questions, because they won’t let the public ask.

So, I guess that leaves it to us to frame the questions…just in case the Board does not figure out the right topics of conversation.

But to be fair, Mimi was cited in the Enterprise as wanting to know what effect the Carcieri decision will have on the resort project. Good question…just too many months too late, and, if she really wants to know the answer, maybe reading the SCOTUS decision and some of the “Anti” blogs might give her a clue. For that matter, maybe reading the IGA, which spells out what happens if the Secretary of the Interior can’t grant Land into Trust application, would let her know that the Tribe can terminate the IGA now. But then again, the BOS keeps claiming that the Town is "partners" with the Tribe when the IGA expressly states that we are NOT partners or joint venturers--go figure!

In any event, here are some of the questions I would like to see asked:

1. Does the Tribe intend to rescind the IGA based on the SCOTUS ruling, and will they commit to creating new language that will bar their right to rescind, prior to any negotiation of any other aspect of the IGA?
2. If the feasibility study shows that the infrastructure improvements the Tribe agreed to make will be too expensive to allow building the Resort on the scale they expected, does the Tribe intend to ask Middleborough to agree to less infrastructure improvements?
3. Does the Tribe accept the fact that any negotiations that lessen the benefits of the IGA, as originally voted on by the Town, must be voted on at another Town Meeting?
4. Has the Tribe or any of its agents ever met with the Governor, either formally or informally, to discuss a compact? If so, do they intend to meet with him again without Middleborough being present?
5. Mr. Tobey said that he would be investigating those other Tribe members that were involved with Marshall and the matters to which he pled. Has he found who they were, and have they been removed from the project?
6. Will the Tribe assure the Town that if this Resort project does not come to pass, that under no set of circumstances will the Tribe or the investors attempt to recoup any of the Planning monies that they have paid the Town to date?
7. Will the Town get its 2% from the Tribe or not?
8. According to the BOS, they wrote you a letter in January asking for a meeting, and they claim that you never responded. Is that true? Is that how one "partner" treats another--not responding?
9. If you believe in the accountability and transparency of this project, as Aaron Tobey has claimed, do you mind answering questions from the public tonite? If so, how does that square with your stated desires?

Any other questions? Feel free to send them. I will post them here (even if anonymous)—but be polite.

Where Are We Now?

2009-03-27T07:48:00.006-04:00

The Tribe needs to immediately put up, or move. The problem comes from Carcieri, the failure of the BOS to be mentally present on any other day than Monday, and the quoted language of the IGA below:

"L. Effective Date and Term.
This Agreement shall become effective upon its execution by the Parties
hereto and shall continue during the period of time that business operations related to the Project are conducted at the Project Site, provided that if the Tribe is informed by the Secretary of the Interior that the United States will not take the land into trust for the purposes of allowing the Tribe to conduct gaming activities thereon then this Agreement shall terminate 30 days after all appeals related to such a decision have been exhausted."

Here is the problem. The BOS did nothing when the Marshall plea happened, even though our gaming attorney, in a December 22 letter to the BOS told them they should take action to have a meeting with the Tribe. The BOS refused that advice, and said that a meeting would happen in mid-March. The BOS, probably unaware of Section L (from pure laziness in failing to read the IGA), did not even realize that the Carcieri case also needed to be handled with a negotiation and discussion with the Tribe BEFORE the SCOTUS made its decision. Again, they simply sat and watched as our small window of negotiation opportunity disappeared.

So where are we now. The Tribe is doing a feasibility study, and the BOS wants to wait for that to be done before talking to the Tribe. They apparently don't realize the importance of that study. The Tribe is trying to set up the numbers so that they can come back to the Town and say that they need the IGA adjusted to remove some of their infrastructure obligations. In other words, they will want to get rid of their obligation to wait until Rte 44 is usable before they open the resort.

Recall that the IGA prohibited the Tribe from using any local roads once they began operations, and there was no way that the State would have 44 done before they were ready to open. That negotiated provision gave leverage to the Town to get the percentage that was promised in negotiations. If the BOS had pushed the discussions back in February--before Carcieri, the Carcieri issue could have been dealt with at those negotiations, and the matter of local roads and percentages also could have been resolved. There was a good argument for breach back then, something our gaming counsel confirmed on December 22.

But now, the Tribe, under Section L, based on Carcieri--the relevance of which the BOS ignored--now gives the negotiation leverage to the Tribe. The IGA, as the law currently stands, suffers from an impossibility of performance, and the Tribe can simply pull the plug without any cost to them--and they may even have the ability to get back the $250,000/year planning monies on a theory of unjust enrichment or equitable rescission. Wouldn't that be a kick in the teeth to Middleborough--all because the BOS failed to take any affirmative steps to protect the Town.

What should happen is an immediate sit down with the Tribe, where they are told that there needs to be an immediate decision on where this project is going, whether the Town can expect its percentage and several other modifications. If the answer is satisfactory, then modify the IGA appropriately. If the answer is negative, then let's send them packing and focus our attention elsewhere.

Bottom line, the worst thing that can be done right now is to let the Tribe get its ducks in a row, because time is not on Middleborough's side. They are lining up their ducks to get out of the infrastructure costs, and will rely on the BOS desperation for the casino to come to Middleborough (at less cost to the Tribe and greater cost to Middleborough).

Make the Tribe commit NOW, or tell them to leave NOW. Their choice.

The Upcoming Middleborough Elections

2009-03-26T18:22:00.004-04:00

In this election season, perhaps I could make some observations as to one candidate for Selectman:

I will not vote to put Spataro back in office, since, among other fatal flaws, it looks like the accuracy of his memory is as bad as his ability to show up to meetings on time. For example, he says he did not raise taxes for the people of Middleborough, yet in 2007 he voted to decrease the tax split from 7.5 to 5%--costing residential taxpayers, the fabled average tax payer, $70-80 more on their property taxes. He also says he opposed the CPA to save people an average of $48--a tax which would not go into the general fund; yet, he still cost us $22-32 in taxes. Short memory, or myopia?

He now claims that the Town needs to work with SRPEDD for its economic future; yet he was the one who lambasted SRPEDD regarding its position on the casino and called for Middleborough to withdraw from SRPEDD--until it was explained to him how bad that would be for the Town.

He and the other Selectmen have squandered the negotiation position they had with regard for the IGA because they refused to push for immediate talks to address the Marshall issues and the Carcieri petition for Cert. Now, the Tribe has the leverage to walk away without cost, where before we had leverage based on an apparent breach by fraudulent inducment. Just plain dumb.

Steve could not even screw up the courage to challenge the Chair for no longer doing the Pledge of Allegience, but once a room full of veteran voters came in to protest, he buckled like cheap flooring and said he supported doing the pledge. There is some leadership.

More interesting is that he has no courage to challenge the decisions of his fellow BOS members, but does find the courage to abuse citizens who persistently attend the BOS meetings to ask for answers. They are the "cheap seats," and "rabid followers," and seekers of "15 minutes of fame" -- a Selectman = fame?

He takes credit for the appointment of the new Town Manager, but forgets his embarassing and public excoriation of Mr. Fohlin, a candidate for Town Manager, and that his outburst made it more difficult to immediately find a new set of candidates.

He claims that his cheap seats outburst should be forgiven because it was his only ouburst "in 20 years." I guess that doesn't count the Fohlin outburst and the SRPEDD outbursts. Short memory or selective memory Steve?

Support for Mr. Spataro is support for a lackluster follower who suddenly finds some voice just about election time, and looks to please any LARGE block of voters--not the rest of the rabble. For gosh sakes, he did not even know the actual Town budget.

At one time I opposed his recall and then switched--my bad. It seems I should have stuck with my first instincts.

__________________________________________________________________________________

As for the position of moderator, I respect that position too much to see it go to anyone with an entrenchment with the status quo and an agenda that could negatively influence the free flow of debate at Town Meeting. Unlike Selectman, the Moderator position could be the centerpoint of the democratic process, or it could be handled as a dictator--there is only one moderator. That position also appoints other committees.

Being a competent Selectman does not necessarily qualify you to be a good moderator. In my view, Wayne Perkins is too entrenched in the pro-casino orgy to really separate himself from that issue if it comes up at Town Meeting. With the massive sell-out of our current BOS to the interests of the Tribe (more through their laziness and ignorance of the terms of the IGA), we would simply be handing over Town Meeting to the casino interests. I can remember his excited little chant to me before the beginning of some of the BOS meetings--"The indians are coming. The indians are coming"--a scary concept if any articles against the Tribe's interests come to Town Meeting floor.

Putting the casino aside, I think that the moderator needs to be more distant from the political fray and less connected to the players. Wayne is many decent things, but he is entrenched with the political interests and really is one of the players. He has very specific agendas and is a master at getting his way. This is not a bad thing--just bad for the position of moderator, and the voters need to protect the moderator's neutrality at the cost of losing their voice.

I will not tell anyone who they should vote for, but I am working from the process of elimination--eliminate all bad choices first, and then work with what is left.

Just my opinion as a citizen, and former member of the BOS

Troubling Observations

2009-01-21T17:28:00.002-05:00

In light of all that has been coming to light and after the January 12 BOS meeting I have to question what currently is motivating and driving the BOS regarding the whole Glenn Marshall/investor mess relating to the Resort project.

There was a December 22 opinion letter from Mr. Whittlesey that seemed to be quite clear that a discussion should be had specifically relating to the IGA and its terms. Attorney Whittlesey, on December 22, 2008--to whom we paid more than $200,000 for his expert legal advice--stated, in an opinion letter (which Ms. Duphily demanded from me before she would even consider (then ignore) my position on this issue):

"Dear Mr. Bond:

This letter responds to your inquiry concerning the referenced agreement and the Town's situation in light of recent publicity about former tribal Chairman Glenn Marshall. Specifically, you have requested my opinion as to the Town's situation and whether there should be meetings--formal or informal--with the Tribe about the IGA.

It is my opinion that the Town's Board of Selectmen should appoint a delegation to meet and confer with the Tribe about this situation.

The allegations to which former Chairman Marshall is pleading guilty are serious and raise questions about the fundamental representations made by the tribal representatives attendant to the process through which the referenced IGA was developed. For this reason, it is my STRONG recommendation that the Town informally request meetings to discuss the specific agreements made and the foundations upon which they were determined. If the Tribe prefers to not meet under these conditions, then it would be appropriate for the Town to formally invoke the Dispute Resolution provisions of the IGA. However, I do not believe that this should be necessary."

To date, the BOS has squandered this advice and, as of January 12, actually struck any reference to the IGA from the letter requesting a meeting. This was done on a motion by Steve Spataro (up for re-election this term and supported by Casino Friends in both the last election and to avoid recall) and seconded by Ms. Duphily (also supported by Casino Friends for election)--they simply believed that the language referring to the IGA was too aggressive and didn't like the tone.

Mr. Frawley stood and politely (I note politely because some have falsely claimed he was rude)questioned:"Are we just going to ignore what has happened on the Tribal side, or are we going to deal with it?" He got no answer from the BOS, and any reference to the IGA was stricken from the letter by a 3-1 vote. Essentially, we are burying the Town's interests by being so "polite" and accommodating for fear that the investors will take the deal away. This is the time to be business aggressive in the protection of the Town's interests.

I also overheard a discussion after the meeting where Ms. Duphily was arguing with Mr. Renfrew that you cannot blame a whole Tribe for the acts of one man, any more than you can blame a whole BOS for the acts of one Selectman. Once again, this is not about the emotional blame game.

We should all consider that the Bingham's attorneys are going after an agreement with the Town of Mashpee based on the same alleged acts of fraud. They want to annul an agreement based on the alleged improprieties of Shawn Hendricks who brokered the deal with Mashpee. Why is their position any different than ours (and I believe ours may be better).

Glenn Mashall, and apparently others with him, acted in a manner that may have breached the IGA. This does not put "blame" on the whole Tribe, it simply creates a basis for a claim that is founded on the fact that he was acting in his representative capacity (as CEO of the Tribe), and that in that capacity, he may have committed an actionable wrong against the Town on the Tribe's behalf. So the BOS should be focused on fixing the problem--quickly.

All of this leaves me questioning motivations and preparation. It seems clear to me that discussion is cheap and that at the center of the storm is any impact on the IGA. The so called elephant in the bedroom. On January 12, it seems that Ms. Duphily and Mr. Spataro wanted to simply dismiss the elephant in the bedroom and try to proceed like nothing is wrong. I beg to differ, and I do so a just one man, and a citizen of Middleboro, and in a manner similar to Amelia Bingham and her lawyers.

Apropos of this issue, I was asked about the two occasions I previously referenced where an elected official spoke to the Tribe or its agents about information that I believe was damaging to the interests of the Town by being disclosed. It seems like a fair request, and it is a request that I can answer from personal knowledge.

When I took action after the Tribe, through its then Chairman, Shawn Hendricks, excluded us from their request to the Governor to have compact negotiations, I acted as quickly as I could to preserve our right to be at the compact negotiations--as promised by the negotiators. Acting alone, since nobody else had yet identified the gravity of the situation, I wrote a blog that accomplished the purpose of having the Tribe retract the letter and include us in the request for compact negotiations.

Mimi Duphily, who, as she put it, wanted to "rip my face off" because she had to deal with calls from reporters and people coming into her shop (I deal with this regularly), was visited by Helen Belmont, President of Middleboro Friends/Member of Casino Friends. According to what both Mimi and Helen told me (and argued about with me at a later meeting), Mimi and Helen spoke, and then Helen called Steve Graham on her cell phone and put Mimi on the phone to talk with Steve Graham. Steve Graham is one of the Tribe's negotiators for the IGA and also serves as their political consultant/handler.

Mimi let Steve Graham know that I acted alone and that the rest of the BOS knew nothing about it, and by doing so disclosed that the BOS was divided and easily assailable. I still am dumbfounded that, she called the other side...not her own Board Member to find out what was going on. She felt more comfortable contacting the Tribe and its political handler, rather than calling a member of her own Town Board. She told me that she didn't call me because she was so mad at me, and because she knew I was going out of Town. Last I looked, the cell phones work all over the country, and I spoke to Town hall at least three times that day, and the Tribe was able to get me to discuss the matter while I was boarding a plane to Tennessee. Mimi then took three days to return my call to her (because she was so mad), which I made after I found out she wanted to rip my face off.

The second incident was when Aaron Tobey, a tribal council member, contacted me for a man to man discussion about the Marshall indictment issues. Aaron and I spoke on condition that we both agreed neither spoke for his group and that nothing we said would in any way bind either side. I had our TM immediately send an e-mail to all the Selectmen to let them know that I would be meeting with him--because I did not want Mimi to be so mad that she would want to rip my face off, and I had promised my board that I would keep them in the loop in the future. The agenda and results of the meeting immediately were discussed with the TM. Apparently, Mimi,contacted someone at the Tribe to find out who this Aaron Tobey was that was meeting with Adam Bond, which set off a fire storm at the Tribal end that could have broken down any possibility of fruitful discussion. How did she know which council members are involved in improprieties, and why didn't she just call me (or the TM) to ask who he was--I was in Town, told her about it through e-mail, and she should not have been mad at me. Apparently, she just feels more comfortable with the Tribe and their interests than any discussions with me. But Aaron was a gentleman about it all--upset, but a gentleman.

Again, I am concerned that the Town's interests and/or strategies are being overlooked (and leaked)for some esoteric and emotional reason relating to how certain individuals feel about the tribal members on a personal level. If you want to love the Tribe, feel free, but as an elected official it is the deal that needs to be harnessed and dealt with professionally for the interest of the Town.

However, to the Town's detriment, this Board has telegraphed in no uncertain terms and loudly that it will never walk away from this deal under any circumstances and regardless of the consequences, because it NEEDS this casino. Apparently, the BOS will take everything that is thrown at it and continue to defend the Tribe at every turn. This is no way to handle a contract or deal of this magnitude. There is absolutely no reason that the Tribe or the investors will ever enter productive discussions with this backdrop of unqualified acceptance by the Town arising out of a sense of utter desperation or NEED.

From my perspective, I am for the deal and resolving these issues promptly--which includes all the promises that were made and the expectations formed along with its creation and vote. If I believe my Town's interests are damaged by the actions of the other side, I would take any and all steps to get those issues resolved, all the way to the remedy of parting ways (which is always and is still a viable option). My Town's interests (as I see them) are paramount, and a willingness to walk away is as important to the Town as a willingness to stay and work it out. They don't own us...yet...or do they?

But this is just my opinion as an individual citizen and just one of five Selectmen.

Wow! There are still some who know how to play it right!

2009-01-20T17:07:00.006-05:00

Cape Cod Times on January 14, 2009.

"In a motion filed Monday opposing [Mashpee's] motion to dismiss, the Binghams cited the suspension of current tribe Chairman Shawn Hendricks, Marshall's protege, as a basisto negate the agreementmade between Mashpee and the tribe." The Article in the Cape Cod Times continues: "Hendricks was at the helm as the deal was finalized, and the questions about his integrity provide a basis to challenge that agreement..."

Imagine that...even members of the Tribe (now unshunned) can see the legal soundness of the position that a possible omission to disclose alleged fraudulent activities relating to the project can provide a basis for returning to the table to talk. They couldn't possibly be rascists...these are members of that very same tribe. They couldn't be way off base, or the court will sanction them for raising a frivolous defense. Maybe they actually listen to their legal counsel and actually know how to deal with a transaction that can't possibly be dealt with from a small town mentality.

Are they just kicking themselves while they are down? Are they turn coats to their own tribe? No. They are simply being proactive in attempting to protect the interests of the majority of their tribe by revisiting issues that may have the taint of impropriety. Perhaps the Town of Middleborough and its elected officials still have much to learn from the Tribe and the Binghams. Maybe they can see past the small farmstand and look at the bigger picture to try to consider that the right way to play this out is not desperation but persperation.

Just my opinion as a citizen and a single (and outvoted) member of the Board of Selectmen.

The Recent Hubub About The Casino

2008-12-31T11:31:00.010-05:00

In my humble opinion as a citizen, and not speaking on behalf of the BOS:

It seems certain people have decided that a multi-million dollar deal, the likes of which Middleboro has not seen in its entire history, is to be handled like a personal relationship or the sale of so many tomatoes at the roadside. They keep referring to those on the other side of the deal as friends, when their interests are clearly at odds with ours. As they say on Wall Street (where most deals of this size happen), if you want a friend, get a dog!

This deal is no different than most others. It is about money, self interest, and leverage. Just because some small sector of your population makes friends with the other side, eats with them, brings them care packages, and believes in their cause, does not mean that this is not still all about money and that you simply kick the interests of Middleborough to the curb. The other side looks out for its interests, as we should always be looking out for ours.

Some people have suggested that Middleborough does not even need the IGA, since, when the Tribe gets here, they will give us all the money we need. Right. They fight for decades to get what is rightfully theirs, that was wrongly taken by people like us, and when the Tribe gets theirs, they will willingly and freely give it right back as we need it. Really?--can we get that in writing. WAKE UP!!!

People say that re-opening discussions with the Tribe is like kicking them while they are down, and that people with a small town view of the world (as compared to a New York City view) don't do that to their neighbors and partners. I do not see the Tribe moving to Middleborough in droves (remember, they want housing in Mashpee, and the casino goes here.)

Apparently, the people that call them our partners also don't know the meaning of the word. A partnership imposes a fiduciary responsibility between partners. That means a relationship of honesty and loyalty between each partner. Where is that honesty--we need to talk. Where is that loyalty (after our initially not being invited to the compact negotiation table). If you want to call it a partnership, then look up the term before you use it. Partnerships also usually have a split of revenues between partners, thus, the partners each have a stake in the profitability of the venture. This is a basic contract where they buy our continued participation, but we really have no say in the business or its revenues--not a partnership.

I also disagree that reopening discussions is kicking anyone while they are down, its protecting the rights of the citizens who I, only one member of the BOS, took an oath to protect when I was elected into office. And by the by, claiming a small town mentality to a complex commercial transaction, is like admitting no competence to handling the deal. I would not be proud of that admission of ineptitude. While it is really quite quaint and fuzzy to say I look at it from a small town view, it is scary to think that the voters are at risk--since where small town views meet big business, small town loses. We need to grow up and play the game the way it must be played--like adults who comprehend complex commercial transactions.

The Marshall indictment is not an isolated issue that has nothing to do with the deal--that is simply a ridiculous statement meant to ignore reality, and sounds like it was probably hatched by Scott Fearson or Political Consultant A. It is a nice PR ploy and it is the grist for editorials such as the recent one in the Empty Prize (again, probably hatched by the same two PR people), but it ignores the terms of the agreement and the basic reasonable assumptions made by the voters at Town Meeting when the IGA was voted. By the way, reopening discussions does not void the deal. We have not breached, and unless something else is negotiated and signed, the deal is still in place. Talk really is cheap.

Maybe reference to a legal concept would help (since no one seems to want to crack a book on the subject). Take, for instance the legal claim of fraud in the inducement. Such a claim presents a special situation where parties to a contract appear to negotiate freely, but where, in fact, the ability of one party to negotiate fair terms and make an informed decision is undermined by the other party's fraudulent behavior in failing to reveal material facts. Hypothetically speaking, of course, would knowing that the Tribal Chair and some of its Council members allegedly violated the campaign finance laws in pursuit of recognition made a difference in a contract that has as part of its terms good faith and fair deal and a long relationship of mutual trust and support. Would it have made a difference to the voters at Town Meeting. Would it have effected negotiations if the negotiators knew the alleged character of the individuals and entities on the other side of the table.

I agree that the embezzlement is probably tangential to the issue, but the corruption surrounding the campaign finance laws and the alleged participation of other Council members in those actions raises the question of trust and good faith. Remember, that it took asserted action to get Mr. Hendricks to include Middleborough in his FINAL letter to the Governor--which he stated was an oversight. It takes vigilance to make promises be followed. Remember also that the invitation to meet with the Governor at compact negotiations was a "promise" by the negotiators -- not in writing, but by understanding (look back at the IGA). That promise was almost lost through the BOS inaction--and Ms. Duphily continues to complain that I took the action I did.

This is a far cry from kicking someone while they are down--this is protecting the deal and the rights of the Town. It may be unpleasnt, but most legal issues of this nature are, and failure to move forward in a proper manner is simply to deny that Middleborough and it voters have been victimized also and have rights that need protection. I feel bad for the Tribe, but I feel worse for my Tribe to whom I owe unqualified and absolute allegience.

On that note, let's consider further that some individuals in government also take it upon themselves to disclose to the people on the other side of the IGA matters relating to the Town's own strategies relating to how to proceed under the IGA. I can think of at least two occassions where that has occurred, and it has telegraphed to the other side that there is division on the BOS that can be exploited to their own advantage. To me, such actions by any elected official is a breach of trust and sheer wreckless disregard of the consequences that such action will have on the Town's interests.

If you think it through, my demand to have communications with the Tribe concerning recent events and the impact, if any, on the deal was simply that:"let's talk." But it seems that both inside and outside Middleborough that demand has translated into some fearful exchange that the BOS is reticent to accomplish, and at least one Tribal Council member appears to reject out of hand. Great relationship where both sides are afraid to communicate with one another. Great relationship where demanding a communication suddenly places you squarely in the "anti" camp. Great relationship where a delay is built in to having any conversations to mid-March in the hope that the LIT will be done so that any conversations can be rendered meaningless.

Finally, consider that while I continue to support the casino project, I do not do so at the expense of the interests of the citizens of Middleborough. Middleborough is the only interest I have--not the investors, not the Tribe, and not my keeping my seat on the BOS.

Removal Of My Prior Blog

2008-09-14T20:42:00.003-04:00

The removal of this blog seemed to be fairly innocuous from my point of view, but if others are bothered by its removal, I am not bothered by republishing it. A simple phone call to me would have accomplished the same purpose. Enjoy the apparently slow news day. By the way, if anyone has a copy of the blog to Shawn, please e-mail a copy and I also will restore that blog post.

Thank You Shawn

Shawn Hendricks:

Thank you for the various discussions today to resolve the issues that
arose regarding the compact negotiation fiasco. You have renewed my
faith in the partnership we have forged, and I accept your
representation that the omission was an oversight.

As I understand it now, the Town will issue its letter of support for
negotiations to begin (and the final version will be subject to a BOS
vote), and you have told the State that Middleborough should
be involved in any discussions which affect the host community. I
agree, and I believe that pretty much all such compact discussions will
affect the host community, as I expect our letter of support
will indicate and clarify.

I also believe that our future as partners will be best served with
better communication between the two groups, and I trust that you can
appreciate the great sensitivity that each of us has when it
comes to dealing with the State. However, I am currently content that
the Tribe has told the State in its letter that Middleborough will be at
the table, and that you have represented to me that you
agree that most, if not all, discussions regarding a compact actually
would affect Middleborough as the host community, and that Middleborough
is the only one that can actually make that
determination. I look forward to your notification as to when the State
wishes to commence its negotiations.

Thank you for reaching out, and thank you for correcting the oversight.

Adam M. Bond

Tuesday, September 2, 2008
Outrageous Misfortune

The IGA with the Tribe states that: "...the Tribe agrees to support the Town's effort to receive a reasonable portion of any payments which the Tribe agrees to pay to the Commonwealth..."

Consider the above language, and then consider the fact that the Tribe unilateralliy has requested to open negotiations with the State for a compact (ignoring the fact that page 2 of the IGA states that the Tribe AND the Town will jointly make such a request)--with no mention of Middleborough being at the table for the talks. As our reputed partners and friends know, Middleborough is rendered by the Tribe unable to make any "effort to receive a reasonable portion," where the Tribe has given us no notice that the negotiations were formally going to be requested, and without any invitation to be at the talks. The only place that Middleborough can make its effort is at the compact bargaining table, and their failure to invite us eviscerates our right to make an "effort." The spirit and the letter of the agreement make it absolutely clear that we should be present, or our rights have been irreparably harmed.

Recall, that the IGA is predicated explicitly on the "expectation of further remuneration" from the State. Remember that Middleborough supported the land into trust on the express basis of an "expectation of remuneration from the State." How is it that, as partners, this current scenario places Middleborough on the outside looking in.

I expect I simply am overreacting to an excusable oversight by the people who are asking for the compact negotiations. I similarly expect that the oversight will promptly be rectified, as I am not alone (by a long shot), on those that support the project, but are awkwardly surprised by this apparent lack of mutual respect for the partnership.

My opinion, is that Middleborough has a right to be at the compact negotiations, the Tribe has an obligation to provide us with the opportunity to put forth the "effort to receive a reasonable portion of any payments which the Tribe agrees to pay to the Commonwealth," and the Governor should welcome our input in the compact negotiations.

But, I support the project, and hope the Tribe supports its partnership with Middleborough, enough to repair this wound. Successful partners work together, keep each other informed, and I expect that to hold true here. If it doesn't, is there any reason to continue to support an illusory partnership.
Posted by AMB at 8:59 PM
2 comments:
Anonymous said...
Adam,

Now you know how it feels. This is exactly what the Middleboro BOS did to the residents of Middleboro by not allowing us to have a voice or participation in the IGA. Leaving Middleboro out of the compact negotiations with the State is a very intentional oversight. The Tribe, inevstors, and the State do not care about small town Middleboro. It is about time you - and the rest of the BOS - open your eyes and see this process for what it truly is.

Regards,
Kristen

September 3, 2008 8:58 AM
carverchick said...
As much as I disagree with your support of the project, I agree with you that the Tribe needs to honor its agreement with your Town. I personally don't see it as an oversight, but I am cynical of the process and the integrity of Tribal leaders who, in my eyes, continue to show that their word means nothing to them and the host Town and surrounding community means nothing to them either. Make sure they honor the agreement. They owe you that, not only because of the agreement, but because of the constant support you have shown them throughout this process. I hope for everyone's sake, this is not a glimpse of things to come if the casino is built.

A United Middleborough

2008-09-10T22:25:00.002-04:00

We have been disappointed at the apparent confusion (and more than a bit of criticism) from our listeners of late. It seems that they have been disappointed with our recent line up of guests, and the manner in which we have treated them – alleging that its counter to our pro-casino stance. We are for the casino project, but we just wanted to speak to this point for a moment:

We did not start this program to talk pro-casino all the time. If that had been our intent, we would have called the show “Pro-Casino Talk.” We started this show to explore ALL issues, and hear ALL points of view.

It is disheartening to hear criticism of guests based solely on their casino stance, the most recent criticism regarding Tom Calter. We hope that you can see our point of view: Tom Calter, regardless of his position on Indian gaming, is still a Representative of the Town of Middleborough. We strive to never find ourselves so focused on a dissenting point of view, that we become insulting or rude to ANY guest. It is our hope that Coffee Shop Talk will bring opposing sides some understanding of one another. This is a crucial time in our local politics (as well as our national politics) and we need to be tolerant of opposing views. For Middleborough, specifically, a town that allows division at this moment in time will only hurt itself.

We appreciate everyone who has supported the show thus far. We enjoy hearing from all of you, and welcome your personal opinions and encourage you to express your personal beliefs - that is the basis of all good conversation and debate. We hope that you understand that this program is a forum for you to express yourselves and hope that you are not waiting for us to express those beliefs on your behalf. It would be presumptuous for us to speak on your behalf. We would much rather speak with you.

We hope that this clears up any misgivings people have had of late.

Sincerely,

Adam & Victoria Bond

Rockland Industries

2008-07-29T12:26:00.003-04:00

On the anniversary of the July 28 Town Meeting, I thought that it was incredibly encouraging that many people from both sides of the casino debate turned out to support the effort to clean up the Rockland Industries site. It was not that long ago that there was not even the ability for both camps to be in the same room, let alone agree on the color of that room.

All clearly is not lost in Middleborough, as the common issues (not just the casino issue), seem to be remaining important to all. I saw many anti-casino people populating the audience at the meeting, sitting within arm's reach of many pro-casino people. All seemed riveted on the information regarding the Tier 1 hazardous waste site located on Plymouth street. All seemed to have the same goal--quick clean-up.

While I certainly can appreciate how the casino issue divided our town (and the role I played in that division), it is heartening that at least some of those involved on both sides have the ability to put the general town issues to the front, while setting aside other differences.

Thank you to both sides and the strides I hope we can make in the future on all the OTHER issues that face this Town.

Middle Class Doldrums

2008-07-15T13:42:00.003-04:00

I am sure that you all have heard it before...but here it is again! I am sick to death how the middleclass is so abused and misused by those who claim to represent us. We are to rich for assistance and too poor to afford what we need. Our taxes continually go up, as do our costs of living, and we continue to pay the steady wages of our federal, state, and local employees--while we pay our own way for health insurance, retirement, and all other costs.

I would love to have a pension (it would save me the trouble of saving in an IRA). I would love not to pay the equivalent of a second mortgage for my family health insurance. But I have no choice, because I have to pay for everyone else's pesion and healthcare costs. Heck, I have to pay my State Representatives for their salaries, as well as their stipends for travel and their pay for committee appointments. What a racket!

I want to know where our next President will draw the line. I want to know where the Governor will draw the line. Oops! I forgot. Government employees and officials vote and lobby--the middleclass is too busy working.

Sorry. Just needed to get that off my chest.

Cooperation and Information

2008-07-15T13:25:00.002-04:00

I have attempted, as Chair of the Board of Selectmen to try to open up the lines of communication and information to a greater degree than my predecessors. It seems to have created a more vibrant level of discussion and debate, and for that I am thankful. I do not know what I would do if I did not have Mike and Bob in the audience showing their Cheshire grin pearly whites, whenever the debate goes from the ridiculous to the sublime.

However, it has become evident that with more of the materials for the meeting being accessible, the questions from the public, as well as their level of informed participation have improved. The level of cooperation at the meetings--fixing the problem, not fixing the blame--has improved.

Not everyone has put aside lingering disagreements or anger. But many have laid these things temporarily aside to move other projects and issues forward. I must say that it is heartening to see this level of cooperation begining to gel.

In any event, we now have BOS packets online, there is a 10 min "Other Business" to be open to the public for comment, and I believe that comment on pending motions and issues are being entertained (particularly because the commenters have been respectful and professional). If there are any other ways that the BOS meetings can be made more accessible, please comment below. It would be of great interest and of great help.

Netiquette...There's An Illusion

2008-05-03T22:57:00.002-04:00

Let's talk about Net etiquette for a moment...since I may have violated it. I have been told that the Internet is the "Wild West," and that I should not expect any salvation in my demands for openness and the ability to face one's accuser. In fact, it seems that to demand the identity of persons placing nasty posts is tantamount to shredding the Constitution..so I am told.

Some context. In response to my blog discussion about another poster's Third Reich comment in a private forum, it was written IN PART on www.coffeenot.com that:

"I am deeply sorry that I provided you with ammunition that you have chosen to use to again set people against one another and inflame passions. Shame on me also, for not considering that my comments could make it to the web at large, although it is a breach of netiquette to post material from a private forum on a publicly accessible webpage, as it is a breach of netiquette to publicly post private e-mail correspondence. However, I ask you, how does posting a comment from a members-only forum on your blog page, and then challenging readers to attack you for doing so, “heighten and further” discussion of issues important to the town?"

Keep your netiquette and hold it close, because if I had made that post on any forum or in any e-mail, it would have been posted by the opposition in every possible place. If you believe that Internet etiquette would have saved me, please reconsider your position.

I did not challenge anyone to attack me. Indeed, I have become accoustomed to it and have come to expect it from those who have delighted in doing so, because, as one of you has already stated (a director of CFO), I make it so easy, and they believe it irritates me. There is a rationale that breeds trust and open discourse--not. I have been attacked regardless of whether I make any postings and even when I am not involved in the issue, which certainly gives me a bit of freedom. Do you see no fault in yourselves? Is everything as black and white as you profess?

As to providing ammunition, ammunition for what? The comment made was not a terrible comment, and as I said, it was an academic analogy. I am Jewish (I didn't just live in a Jewish neighborhood), and a member of the BOS and a member of Town Meeting. Do I really think you were saying that I am tantamount to being a member of the Third Reich? I guess if I were over-sensitive and looking for a way to attack you, I could say that your comment was anti-semitic and offensive. However, I believe better. By the way, has MR reported you to the Jewish Anti-Defamation League yet? I think not. Has she called any persons with whom you have business relations yet to indicate that you are somehow an anti-semite? Imagine that, an antisemitic jew.

Your comment seemed to be your frustration with the proposed resort and other failings of the municipal government. However, realize that much rage has been personally directed at me and my family by people that you support. I am treated as if I were some sort of a Svengali that hypnotized an entire BOS, Town Meeting and many others to support this project. I only wish that I had the immense influence and power that opponents have ascribed to me in making me the focus of often cruel discourse. I seek no sympathy (I chose to run for election and I made my choices), I only raised this issue to show that it is not really the message that people are attacking, it is the medium and the messenger. Look at the fact that you made the post and I am being criticized for discussing it--and the etiquette issue is simply a red-herring and you know it.

As to openness of discussion and debate--that takes mutual respect and the ability to not only see the faults of your prey, but yourself. I will never be able to convince a true believer (of which there are few), but I will continue to have open discourse with anyone wishing to do so on the level of respectful disagreement. As a Selectman, regardless of the opposition and what it has said or done, I will continue to make inroads to provide more access and transparency to Town Government. It is why I originally ran, and I now may be in a position to make it happen. The casino has NOTHING to do with this goal, and it must be accomplished whether the casino comes or not. I am perfectly able to separate my feelings here from my charge as Selectman.

As to the coercion issue, you call it what you want, since this is a matter of opinion (until such time as it is adjudicated through the long and arduous process of litigation). But logically--assuming that your allegations are true that the businessman was wrong--are those people who have done wrong undeserving of protection of the law, or in your world, once you have opined that someone is bad, are they subject to the whim of any pack of predators who wish to tear them apart by potentially illegal means. Are you actually advocating that allegedly bad people are not protected by the law.

It All Depends on Who Says it

2008-05-03T11:05:00.003-04:00

In discussion on the topic of the Middleborough Town Meeting Articles, there was a comment by
fiferstone Posted: Fri Apr 25, 2008 10:21 pm

Hi Nemasket:
Sounds like a stock statement, sorta like the Reichstag convening once a year to rubber-stamp Herr Schickelgruber's emergency executive powers. After voting in favor of the extension, it dissolved itself for another year. Believe it or not, that's how the National Socialist "Government" operated in Nazi Germany, Hitler ruled by "emergency" fiat. Anyone who doesn't believe me can look it up, I recommend "The Rise and Fall of the Third Reich" by William L. Shirer, an American journalist who was in Nazi Germany and witnessed the rise of the Nazi party firsthand...but I digress. Seriously, the bit that scares me is the "by other means" bit. In other words, raid the emergency fund for ongoing expenses. The main thing that we do wrong around here.

Is this a Godwin issue? Is the Town's Town Meeting process being compared to Nazi Germany? Are the BOS being compared to "Herr Schickelgruber" and other evil men of the Nazi regime?
I really DO NOT think so. This is a historical analogy and an academic point.

However, I imagine that anyone with an opposing agenda could take great offense to this statement and try to pull the greatest amount of controversy and coverage as possible to slam fiferstone for this analogy. I have heard none--nor do I expect to. In fact, I actually expect that having pointed this out in a friendly way will simply create more criticism aimed at me. Can the nay sayers resist--I think not. Have at it!

New Town Manager Selection

2008-05-03T09:03:00.003-04:00

I have gotten a lot of flack for the fact that I did not vote for Mr. D'Agostino, and that my choice was Mr. Cristello. For those nay sayers, I suggest that they read the entire Court file of the proceedings to get the flavor of the matter, rather than rely on blogs and newspapers--both of which generally have a dubious relationship with "fact." Also, ask yourself the hypothetical question: When seeking the CEO of a company--who is, among other things, charged with the hiring and firing of employees--do you select someone with a verdict against them and their prior employer? My view is that we have enough controversy in our own "company" and that what we need is a little more of a low key managerial environment.

I looked for a steady hand, not an iron fist, and I welcome Mr. Cristello into our Town, and wish the best to Mr. D'Agostino, who is a highly talented, well spoken individual. I have no doubt that he will prosper in anything that he does.

And by the way, Pat Rogers and Steve Spataro deserve credit for making the choice unanimous. They acted in the best interests of the Town and impressed me with their incredible professionalism in the action they took. Thanks guys.

Extortion and Coercion

2008-05-03T08:14:00.002-04:00

According to Wikipedia:

"Extortion, outwresting, or exaction is a criminal offense, which occurs when a person either unlawfully obtains money, property or services from a person, entity, or institution through coercion or intimidation or threatens a person, entity, or institution with physical or reputational harm unless he is paid money or property. Refraining from doing harm is sometimes euphemistically called protection. Extortion is commonly practiced by organized crime groups. The actual obtainment of money or property is not required to commit the offense. Making a threat of violence or a lawsuit which refers to a requirement of a payment of money or property to halt future violence or lawsuit is sufficient to commit the offense. Exaction refers not only to extortion or the unlawful demanding and obtaining of something through force,[1] additionally, exact in its formal definition means the infliction of something such as pain and suffering or to make somebody endure something unpleasant.[2]"

Fact pattern: Engage someone personally on the Internet. Blog about them to the point of damaging their reputation and business, and have that blog linked by several other sites at the same time. Then demand from the target of your blogging something of value in order for you to stop the blogging and take down the offensive material you posted in the first place. Sound familiar? Sound like coercion?

Discussion: At what point does the insanity stop? At what point do those people controlling their blogs begin to use a filter and stop acting on bitterness and rage. This is a completely unproductive pursuit, by people who apparently believe that free speech includes the right to scream "fire" in a crowded movie theatre. While God may have given man free will, he also gave man a conscience to be able to measure his actions appropriately.

Other concepts that should be looked at: Prima facie tort; intentional infliction of emotional distress; negligent infliction of emotional distress; defamation per se (4 categories where defamation is presumed to have damages); and common decency.

Have an Internet nightmare to share? Please provide it to the site, and we can blog about it. I won't accept anonymous comments, but I can post them without identification if you wish.

Removal of Links

2008-04-30T14:09:00.002-04:00

Some of you may notice that I have removed some of the links that I previously had listed on this blog. I have done so due to objectionable content on those blogs. I have included the casinofacts website among the deletions because they continue to link to blogs that are printing objectionable content despite the emotional distress it has caused the targeted individuals. As it stands, I believe that they diminish themselves and their message by continuing to condone any form of politics of personal destruction.

Its the Historical Significance...Oh! No, its not, actually!

2008-04-01T16:55:00.006-04:00

A recent e-mail received regarding the BIA meeting argued strongly against the land going into trust, and really focused in on the historic:

Mr. Bond,

I would like to retort the comment you made publicly in the record of the BIA hearing. Firstly, I will briefly comment on the second portion of your statement and be more specific later.

By virtue of the prevailing philosophy of Native Americans, no one has "ownership" of the land, but are only stewards of the land. This I am sure is what you meant to say as this is common knowledge and would apply to the Mashpee. Therefore the point would be a matter of presence and tribal territory, not ownership. The Mashpee Tribe owned no land at any point until after the plantation or reservation of Mashpee was established in or about 1658 as an Indian praying town. http://capecodhistory.us/Deyo/Mashpee-Deyo.htm More on that later.

In regards to [a certain family's] ancestral "ownership" or presence in Southeastern MA (including Middleborough and in Lakeville), this is well documented both in Middleborough and Plymouth County records. Without having to search with much labor, you can go to the Middleborough Public Library on the corner of N. Main and Peirce Streets, not far from Thomas S. Peirce Playground, and view a copy of "The Peirce Family of the Old Colony" by Ebenezer W. Peirce, 1870. Other books he has written are: "Peirce's Colonial Lists" and "Indian History, Biography and Genealogy" (An on line version you can view here: http://freepages.genealogy.rootsweb.com/~massasoit/book.htm. It was published by Zerviah G. Mitchell, a direct decedent of Massasoit.) amongst other books. If you are history buff, you will find Ebenezer somewhat of a colorful writer who doesn't mince his words and personal convictions. I'm sure it could be said of any family ancestry that there are colorful characters. Also, I'm sure you are familiar with The Peirce Trustees who have contributed tens of thousands of dollars to activities and organizations in Middleborough for a great many years and may have access to other information on the Peirce Family as they relate to our area.

Now, more on the Mashpee Tribe. As I stated during the hearing, I am not disputing the Mashpee's existence in the colonial times, that their "ownership" ended nor their right to reservation in Mashpee. I am not disputing their affiliation with the Wampanoag Confederacy (or Nation) under Massasoit, who was a Pokanoket. There were numerous tribes under his jurisdiction and Mashpee was one of them. There was at least a village of Mashpee before 1658 and other tribes on the Cape at the time. There are some that would claim they were never a tribe before 1658 or after, I tend to disagree with that assertion. Even if evidence showed that they weren't before 1658, that doesn't mean they couldn't have become one after 1658 with the terms of final determination still applying. I have not seen any overwhelming evidence they weren't. My bone of contention is this: Does the Mashpee have a right as a tribe to land in Middleborough? Are they Wampanoaq, yes, but so are the Pokanoket, the Aquinnah (Gay Head), Nauset and Nantucket to name the few most common. As you know, the Mashpee and the Gay Head Wampanoaq are currently the only federally recognized tribes in the the state, although others are still making that attempt. Just because the Mashpee are Wampanoag, it does not mean they had tribal presence or influence over areas other than Mashpee. There is no evidence of such that I can find in any verifiable authenticated record. If you or anyone else has access to such records, I would like to see them. The Gay Head Wampanoaq would vigorously refute any Mashpee claim to Martha's Vineyard, since that area was also Wampanoag, but claimed only to Gay Head. That is why the members of the Pokanokets & Massachets strongly oppose any such claim by the Mashpee.

Massasoit's descendants, being Pokanoket, lived for several generations in the Assawompset Pond area. If you read [the books] referenced above, you will see that is true. Also,In the Mashpee's Final Determination (http://mashpeewampanoagtribe.com/PDF%20Files/mashpee_final_determination.pdf) there is no mention of Middleborough or any other surrounding communities where their presence or territory is documented through the criteria for recognition. There is no evidence of such. Have members of the Mashpee Tribe ever lived within the area? Yes, (Ebenezer makes note of one instance, but only for 2 generations and then leaves no descendants after that), but not under tribal or ancestral influence. The center of their heritage has always been Mashpee and that is where they always return, if some members lived any where else. It would be like, just because I once owned land in Boston that I have some claim to Boston Common as my rightful domain. I'd be laughed out of town.

The federal government recognizes the separation of Wampanoag tribes and their heritages by recognizing them as separate tribes. Would the logic for claiming Middleborough as "home" apply if the Gay Head Tribe, also being Wampanoag, laid claim to that land as "home" for them as well hold up under scrutiny? Of course not, they could make the same assertions that the Mashpee do, but it wouldn't hold up. You would have a real Indian war then. Gay Head and Mashpee fighting for the same plot of land.

That is why I oppose the land proposed in Middleborough to be taken into trust as initial reservation. They and you may disagree, but from my research they are not coming home. Their home is Mashpee.

Sincerely,

XXXXX

In response, I wanted to find out if the issue is really historic or simply an opposition to a casino, dressed up in the garb of an academic argument. So I responded:

While I recognize the implied altruism of your position on this matter, would your position on the project be any different if the Mashpee project were a commercial casino on land that the Mashpee purchased in Middleborough through private sale and/or auction? Am I to presume that a commercial Casino venture on that Middleborough land would not drive you to opposition because it would have no historical implications?

I look forward to your response and further dialogue on this matter.

Adam M. Bond

The response was telling: The land into trust opponent responded:

Mr. Bond,

I would still be in opposition on numerous grounds. I have moral objections, some economic and some environmental impact objections to casinos and do oppose them on all those grounds as well. I'm sure you have heard them all. I've heard all the benefits, but still chose to oppose. If the sight was of some significant historical value that would be destroyed, I could then still be opposed on those grounds with a commercial casino as well. The catalyst for my opposition is the casino. The source at the moment is the Indian gaming laws. I may not have cared as much otherwise, if a casino was not involved, but it is, so I am. Many do not believe casinos are bad, but I do as do many others.

In my opinion, this is a scrupulous and honest man, who is holding to his convictions and has the ability to communicate his opposition in a clear and concise manner. My issue is that I believe that his opposition to the land into trust would not be so, if the Mashpee were seeking it as reservation land for the purpose of creating a living village, a wildlife preserve, or some other less controversial development, with which he agreed.

His position loses credibility--for me--where his opposition is to the casino, and his rationale is steeped in something other than his main basis for opposition. It makes me question the impartiality of his research. However, as I said above, this person is clearly honest and intelligent, and I thought that others should have the pleasure of viewing this exchange.

The Wampanoags Are People Too

2008-03-27T17:11:00.002-04:00

Seems to me, from today's show, that the Wampanoags are pursuing that often cited American dream, in precisely the way that the Federal Government gave them--after they had put in their bid for recognition. They did not shoot for recognition to get gambling--the opportunity was given to them. In much the same way we are trying to deal with our demons of health care, education, culture, heritage, etc., they also seem to be grasping for their brass ring. In the same way that we each find the best way to provide for our families, they have found a way.

It became clear to me today that it is not JUST about money for the sake of money, but that it is about the opportunity and relief that the revenue will provide the Tribe to govern itself and prepare and secure its future. Self determination, as well as self sufficiency will lead to a greater sense of identity and dignity for these people. This is a step forward for a conquered people, that our ancestors conquered and/or erradicated. Think of it as restitution, of sorts, for the anglo-american history that began here only hundreds of years ago.

Someone stated at the BIA meeting that "no one wants to live near a casino." Today, there were several people who will, and claim to do so willingly (including myself). I do appreciate those people who give the other side of the story--even if they do sometimes speak in untrue absolutes to make their point. However, there does need to be some recognition that the Tribe has a certain right to its future, even at some cost to its neighbors.

I know that this is not a technical argument citing facts and figures. However, when you begin to consider the faces of the people being opposed--and to oppose their source of revenue and future as determined by the Feds is to oppose them--you may begin to appreciate that the money is emblematic of raw opportunity for the Tribe.

We are all capitalists in one way or another. We each may even work for capitalists from whom we earn our paychecks. Our economy is made up of people who exploit limited resources and prey on human weakness (e.g., oil companies, liquor companies)and who leave in their wake all kinds of very nasty impacts, which they never even attempt to mitigate. The difference here...in my opinion...is that the result will be the restoration of a conquered people to a level that will sustain them for years to come.

As to Middleborough...I still believe that Middleborough will fare well. Its an opinion. I also believe that we will enjoy a ccertain level of prosperity if we are careful in how we use this revenue stream. I know...I am skeptical of what we will do with the revenues also. However, our shortcomings are not the responsibility of the Tribe...we own our faults and they are ours to repair.

In any event, I learned some new things from my guests and was pleased. I do note that Mark was a little ticked at the "lack of balance," but I did do a CFO show (and hope to do another one). Also, I am not the news, and I though the phone in questions were very good, and helped to raise some of the opposition issues--how much are the impacts really; how much will the revenues be net, net, net;and won't the jobs really be going to flunkies of the investors and leave nothing for anyone buut the Tribe.

Commercial Agreement v. Compact

2008-03-10T18:15:00.003-04:00

Maybe I am missing something here...but if I understand the premise for the commercial agreement with the Tribe, it is to protect the citizens of Massachusetts. If that is so, then doesn't a compact do that better than a commercial agreement.

Think of it this way. The State negotiates a commercial agreement with the Tribe that limits certain sovereignty issues (e.g., personal injury claims being subject to AAA arbitration or State Court jurisdiction with no limits on liability), as well as a 25% - 27% cut from gaming revenues. This deal would then mean that the Tribe is subject to State regulation.

If both parties agree to a set up like this, then why not just do a compact with the same terms. A compact would mean that the Tribe would then be subject to regulation by each of the State, the NIGC and the Tribe. Isn't more regulation a better protector of the citizens? Isn't a commercial agreement ONLY subject to State regulation--and we all know how good the State is at that.

It almost seems that the only reason for the State to go the commercial route has nothing to do with regulation and protection, and more to do with the initial fee/bidding process. In fact, the commercial route actually seems to leave the citizens more exposed without the experienced NIGC being involved. It also seems to leave the Tribe more exposed to potential exploitation by the developers, since there are no limits on how long the developers can remain involved in the project, as there are under the federal rules.

Like I said...I may be missing something, but it seems that if a commercial agreement can be reached, the State should call it a compact and get the additional regulatory help...for our sakes.

Bumpkin & Bond Round-Up

2008-02-28T21:37:00.003-05:00

I have to say that Mark was a pleasure to interview. Smart, polite, and firm in his conviction that the CASINO IS NOT COMING. In fact, he was dying to share his theory—which is not untenable, but can be changed with the political winds. We all know how politics blows. It was one of those interviews that just flowed so well that the hour just passed, before we could get any calls. Sorry folks.

We hit some of the following topics:

Civility in Debate—I think we both agreed that the quality of the debate needed to move away from the personal, to the factual. We have committed to try to set that example. I am glad that Mark and I had the chance to discuss this publicly.

Impacts—Spill Free Gaming Article)—While the article states that the spill over effects of the two CT casinos has been statistically insignificant, Mark questioned the methodology (which is never explained in the article), and he also questioned the conclusions as counterintuitive. My questions about the article focused on the fact that the linear regression models are an incredibly awkward way to attempt to predict these factors of crime, congestion and property values.

Sovereignty and legal ramifications: We discussed how Mark believes that a patron of the casino being subject to the Tribal Courts and the damages limitations is something to be worried about. He also thought that there would be the possibility of bias by tribal courts. I came back with the fact that you are entitled to “actual damages” plus 100% (i.e, twice actual damages), no matter what the amount, and there is a MINIMUM wrongful death payment of $100,000. I thought that this is better than the Massachusetts Tort Claims Act limit on its sovereign immunity of $100,000…period. On further thought, I wonder if Mark has considered that if the Tribe put a supermarket on the property, workers and visitors still would be subject to the Tribal Courts—is this any better? Or, should the Tribe simply be told they can’t have Tribal Courts, except for Tribe members—meaning that we simply remove their sovereign status. In any event, I think we both agreed that this is another issue that needs to be dealt with in any Tribal/State compact.

Cooperation between CFO/Opponents and the Proponents in this process: We discussed that, in addition to the opponents fighting the casino, that we ALL TOGETHER need to work on the rear guard plan of forcing the State to address the money issues with the region. We also agreed that the opponents have an awful lot to offer with regard to zoning changes and other impacts, intended to mitigate a possible casino. Essentially, we still do have some things in common, and that we need to stick together to work a plan B.

Other revenue sources—actual examples: I am still not sure that Mark provided any actual examples of alternative revenue sources. We did learn that many were not aware that the casino site was slated for commercial development in the Master Plan. But if anyone has other viable, specific revenue sources…please comment.

Trust the State not the Indians: Finally, I think that in the long run, Mark believes that the circumstances here lead him to trust the state to take care of the host region, more than he trusts the Tribe. I do not agree that the State can be trusted to do anything more than to take money in and spend it in those areas that have a significant voting impact—which is not Middleborough. You need to decide for yourself.

All in all… a pretty kick a** way to spend a morning. Thank you Mark. I’ll be asking you to come back soon. You were an excellent guest!

P.S: THE FIRST COUPLE TO SHARE A BED ON PRIME TIME TELEVISION WERE FRED AND WLMA FLINTSTONE.

UPON FURTHER CONSIDERATION...

2008-02-26T17:24:00.004-05:00

I was thinking about last night’s BOS meeting, and on further consideration, I believe that Tom Calter raised some interesting issues that bear discussion.
1. He seemed tied to the Rappaport study in his criticism of the Deal; and
2. He seemed focused on the alleged “fact” that there could be 1000 more kids in the schools.

As to his use of the Rappaport study, it seems to me that you cannot pick and choose your statistics. That is the same study that says there is little effect on crime, and possibly a decrease per capita in crime. It also stated that property values in rural towns will slightly increase.

As to the schools, he posed the prospect that 1000 more students MAY come to the Middleborough schools. Again, he cited the Rappaport study that discusses a 5% population increase. In Middleborough, that increase would mean 1100 new people in Middleborough—and I do not believe that of those 1100, 1000 will be students.

But rather than focus on the Rappaport numbers, we can look at a model that already exists: Montville and Ledyard.

Enrollment Data
Montville/Ledyard

1998-9 2905 3082
2000-1 2977 3109
2006-7 2949 2916

Population

1998 17,256 14,819
2000 18,546 14,687

Population Growth

1990-98 3.50% -0.60%
1990-00 11.20% -1.50%

As you can see from the numbers obtained from the CT Department of Education, the enrollment has been declining in Ledyard, along with the population since 1998. In Montville, there has been an increase in comparison to 1998-9, but a drop from 2000-1. But it is easy to see that the spread between the high and low would yield the conservative overestimate of an increase of 44 students under the Montville model (even with an 11.2% increase in population from 1990-00, more than 2X the amount predicted by Rappaport), and a 193 student decrease in Ledyard. This is hardly a 1000 student $8.5 million dollar hemorrhage that is claimed by Tom Calter. Under the Montville model, the added cost conservatively figured is $374,000.

I am glad that he showed up, and we could have the discussion we did. He cleared up a number of issues that were bugging me.

Recent E-Mail from a Former Resident of Middleborough

2008-02-26T09:25:00.000-05:00

Adam:

I am a former Middleboro resident now living in Las Vegas,NV of all places!!!!! I am watching the casino story unfold and have much to say about the negative crowd that seems bent on killing the casino as proposed.
I will gladly add my thoughts at some point, but on the whole, after living in Vegas since 1999 (having moved from Southern California) the casinos here are MAJOR positive contributors to the economic and social well being of this fast growing community. The naysayers have no clue as to the positive economic engine that occurs, particularly to the workers at ALL levels of employment. That spin off of income primes the pump for retailers, auto sales, home sales etc etc In other words, it has a vast multiplier effect to the positive in the community. Massachusetts is a NO GROWTH if not an ANTI GROWTH state, that is what is causing your fiscal crisis and destroying your town and city budgets. By the way, I DO NOT work for a casino and have basically nothing to do with the casino industry.

I will try to listen on the streaming portion of your "discussions" with the casino hater on 2/28/08 if business allows me to take that time.

Suggestions for another show, my favorite subject, fire protection. I have been a fire buff since growing up in Middleboro . I have emailed back and forth with Chief Silva, when he was in office, and am saddened by the lack of attention the department has been given. I will elaborate with some suggestions in another email to you

Ken XXXXXX, Las Vegas,

In the Spirit Of Heightening and Furthering Discussion

2008-02-25T17:17:00.003-05:00

I have removed the two blogs that apparently offended a number of individuals--no it wasn't because of you Jesse, and it wasn't the station. It simply is a matter of me not fanning that particular issue, and thinking the better of it from Mark's reaction. But notice...Gladys and some others...it is possible to remove what others may find offensive from your site...and the sky does not fall! Try it sometime. It feels good.

Mark...as I said before, it is more important for the conversation to continue at a better pitch, and I am sure that different imagery could still have made my point.

P.S.: I still detest the "nation within a nation" argument, and wholly disagree with the sovereignty argument. But we will leave that for another day.

Pequot Tribal Laws on Tort Claims

2008-02-25T16:41:00.003-05:00

It seems that with all the talk of the Pequot limitations of liability, someone should actually post those laws so that the details could be seen. After a review, it seems that the Tribe gves beeter than most states when you look at the damages to be awarded. It also has a MINIMUM damage award for wrongful death of $100,000. I do note that there is no provision to require a jury trial--so you don't have to worry about a jury of your "peers," just a Judge.

In any event, here is the relevant law from the Mashantucket Pequod Tribal Laws:

TITLE IV. TORT CLAIMS (GAMING ENTERPRISE)
CHAPTER 1

Section 1. Definitions
Unless otherwise required by the context, the following words and phrases shall be defined as follows:
a. “Mashantucket Pequot Gaming Enterprise” or “Gaming Enterprise” means the arm of the tribal government established by the Mashantucket Pequot Tribal Council to conduct the gaming operations of the Tribe, and includes its officers, agents, servants and employees.
b. “Gaming Enterprise Site” means the building or buildings in which Foxwoods Resort Casino is situated, and all parking areas and access roads appurtenant thereto and located on the Reservation of the Tribe.
c. “Claim” means a petition for an award under this Law. A claim may be filed with respect to any injury as defined in this Title.
d. “Person” means any individual, firm, partnership, corporation, limited liability company, association, or any other legal entity.
e. “Dangerous Condition” means a physical aspect of a facility or the use thereof which constitutes an unreasonable risk to human health or safety, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent acts or omissions of the Gaming Enterprise in constructing or maintaining such facility. For the purposes of this subsection, a dangerous condition should have been known to exist if it is established that the condition had existed for such a period of time and was of such a nature that, in the exercise of reasonable care, such condition and its dangerous character should have been discovered. A dangerous condition shall not exist solely because the design of any facility is inadequate or due to the mere existence of wind, water, ice or temperature by itself, or by the mere existence of a natural physical condition. Nothing in this Section shall preclude an accumulation of water, snow, or ice from being found to constitute a dangerous condition when the Gaming Enterprise fails to use existing means available to it for the removal of such accumulation and when the Gaming Enterprise had notice of such accumulation and reasonable time to act.
f. “Injury” means death, harm to a person, or damage to or loss of property which if inflicted by another constitutes a tort under tribal law.
g. “Actual Damages” means the ascertainable loss of money or property sustained as a result of an injury.

Section 3. Jurisdiction over Tort Claims and Waiver of
Sovereign Immunity from Suit
a. The tribal court shall have jurisdiction over tort claims against the Gaming Enterprise or arising at the Gaming Enterprise Site.
b. The Tribe hereby waives the sovereign immunity from suit of the Gaming Enterprise for actions in the tribal court founded upon a tort of the Gaming Enterprise. Nothing herein shall be construed as a waiver of the sovereign immunity from suit of the Tribe or the Gaming Enterprise in state or federal court or in any action before any state or federal agency or in any other forum or context.
c. Members of the Tribal Council remain immune from suit for actions taken within the scope of their duties and responsibilities as members of the Tribal Council.

Section 4. Awards
In any judgment under this Law against the Gaming Enterprise, the court may award damages as hereinafter provided:
a. The court may enter an award for actual damages.
b. For any injury resulting in death, the Court may enter an award for actual damages, but in no event shall the award be less than $100,000.
c. In addition to an award for actual damages, the court may enter an award for any injury resulting in permanent significant disfigurement or permanent significant scar of the face, head, or neck, or, on any other area of the body only if the resulting permanent significant disfigurement or permanent significant scar handicaps the claimant in obtaining or continuing to work. In determining an appropriate damage award for a permanent significant disfigurement or permanent significant scar, the court shall calculate such an award pursuant to XIII M.P.T.L. ch. 4, Sections 12(c) and 12(d); except that when the claimant is not employed, the court shall use the rate of $200 per week, without deduction.
d. In addition to an award for actual damages, the court may enter an award for pain and suffering or mental anguish in an amount which shall not exceed 100% of the actual damages sustained.
e. No other award or judgment shall enter under this Law, including:
(1) no award based upon a rule of law imposing absolute or strict liability;
(2) no award for punitive or exemplary damages;
(3) no award based upon a claim of loss of consortium; and
(4) no judgment for declaratory or injunctive relief against the Gaming Enterprise.

Section 5. Limitation on Presentation of Claim
a. Any action under this Law must be filed within one year from the date the claim accrued. Claims brought under this Law shall be deemed to accrue on the date when the injury is sustained.
b. The defendant must present the issue of failure to file a claim as stated in Section 5(a) to the Court as an affirmative defense. Such defense shall not be considered jurisdictional in nature.

Section 6. Attachment Prohibition
Neither execution nor attachment shall issue against the Gaming Enterprise or the Tribe in any claim for injury or proceedings initiated under this Law.

LEGISLATIVE HISTORY REVISIONS TO TITLE IV –
TORT CLAIMS (GAMING ENTERPRISE)
A. Background
Title IV of the Mashantucket Pequot Tribal Laws was originally enacted in 1992 as TCR011092-01, called the “Sovereign Immunity Waiver Ordinance.” In adopting that Resolution, the Tribal Council provided “reasonable procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming facilities,” as required by the Mashantucket Pequot Gaming Procedures, 56 Fed.Reg. 24996 (May 31, 1991). Since 1992, tort claims against the Gaming Enterprise have been resolved pursuant to this Law. In addition, the Gaming Enterprise has grown and the Tribal Council has enacted several other laws. In its continuous review of tribal laws and in an effort to respond to the needs of the community and address issues or ambiguities that have arisen, the Judicial Committee conducted an extensive review of the tort claims law and recommended changes to the Tribal Council.
The following is a summary of the amendments to Title IV. Tort Claims (Gaming Enterprise) and the intent of the Tribal Council in adopting these amendments.

B. Summary of Amendments
1. Jurisdiction and Waiver of Sovereign Immunity from Suit
Waiver of Sovereign Immunity From Suit.
Prior to the amendments, Title IV contained a waiver of sovereign immunity that allowed suits against the Gaming Enterprise, an arm of the tribal government, for three
specific types of tort claims: 1. injuries proximately caused by the negligent acts or omissions of the Gaming Enterprise (including its employees); 2. injuries proximately caused by the negligent acts or omissions of tribal security officers; and 3. injuries proximately caused by the dangerous condition of the property at the Gaming Enterprise (dangerous condition being defined in the law).
The amendment to this Section aligns the waiver of sovereign immunity with the waiver in Title XII. Section 2.a., for actions “founded upon a tort.” Thus, the waiver no longer is limited to claims based upon negligence. This waiver is intended to include intentional torts, but would not include so called “constitutional” torts or statutory torts. A “constitutional” tort depends upon rights guaranteed by either the U.S. Constitution or the various state constitutions. Facially, these claims would not be applicable to the Gaming Enterprise or the Tribe, since neither the U.S. Constitution nor state constitutions are applicable to the Tribe, as a sovereign predating the state and federal governments. The Tribe’s Constitution does not provide for or address individual rights vis-à-vis the tribal government and, therefore, could not form the basis of the typical constitutional tort.
Nor does this waiver encompass any type of analogous claim based upon the rights recognized in the Indian Civil Rights Act, which contains similar, although not identical, restraints against tribal governmental actions regarding the civil rights of individuals. The Tribal Council intends to provide separately for claims based upon alleged violations of civil rights and thus, such claims are not within the purview of the waiver of immunity contained in this Law.
All references to or reliance upon the law of the state of Connecticut have been deleted with the intent of clarifying that the tribal court is not bound by state law in any respect. The waiver of immunity does not extend to any type of “statutory” torts defined by any other jurisdiction.

2. Jurisdiction
The amendments clarify that the tribal court has jurisdiction over tort action against the Gaming Enterprise and arising at the Gaming Enterprise site that may not involve the Gaming Enterprise as a party (i.e., private party actions).
3. Damage Awards
Prior to the amendments, Title IV Limited damage awards in several ways. In reviewing the tribal law and its implementation over the past nine years, the Council has amended the law to change some of the limitations on damages. The amendments include the following:
a. Increase awards for pain and suffering. The tribal court system has been limited in its authority to render awards for pain and suffering, in comparison to other judicial systems. Plaintiffs’ attorneys generally have been critical of this limitation and the judiciary has expressed some concern in not being able to award greater damages in some cases. The tribal court system also has been complimented by those who favor tort reform and believe there should be some limits placed upon excessive awards. In addition, the claims handling and adjudication processes in the Tribal system, in large part, have worked well in resolving and paying claims quickly and without the delays found in other systems. The amendments increase the cap on damages for pain and suffering from 50% of actual damages to 100% of actual damages.
b. Minimum award in injuries resulting in death. Although there has never been a claim brought against the Gaming Enterprise involving a death, the present system may not be able to adequately compensate the family or survivors in the event of a death proximately caused by the Gaming Enterprise. The law has been amended to provide for a minimum recovery of $100,000 in wrongful death cases which will address the potentially inadequate recovery that might result in some cases where the actual damages are negligible. In addition to the minimum award for actual damages, a litigant could seek an award for pain and suffering not to exceed a total of 100% of the actual award.
c. Damages for permanent disfigurement or scarring. Another change to the present system is to provide relief to an injured person when a plaintiff has a permanent significant disfigurement or scar on the face, neck or head, or if on any other area of the body when the person can demonstrate that it handicaps the person in obtaining or continuing to work. The amendment allows a plaintiff in this instance to receive an additional award for such disfigurement or scarring, and directs the court to calculate this award in accordance with the Tribe’s Workers’ Compensation Code approach, which ties the award to average weekly salary for a limited number of weeks.
d. Elimination of language which limits awards to extent covered by insurance. The amendments eliminate language limiting claims against the Gaming Enterprise to only those covered by insurance. Previously, the definitions of “Injury” and “Actual Damages” included language defining them as having to be “expressly covered by the liability insurance of the Gaming Enterprise without regard to any deductible amount contained in the insurance policy.” The Gaming Enterprise has extensive insurance coverage and this particular provision has not been used to deny liability.
e. Limitation on awards as to claims against the Gaming Enterprise. The limitations on damages concern claims against the sovereign only, and do not limit awards in claims between private individuals.

Gaming Services Occupations

2008-02-25T15:12:00.003-05:00

Interesting Job I saw posted:
Vice President Casino Marketing
Hiring Company Industry: Gaming & Casinos
Number of Employees: 1,000 - 10,000 Employees Total Compensation: $472k - Base Salary: $350k - Bonus / Commission: $122k Reports to: President Location: Las Vegas, NV

Not such a low paying job—But anyway, we all know
not many casino jobs will pay this.

The following are portions of data and information obtained from the USBLS:

Legalized gambling in the United States includes casino gaming, State lotteries, pari-mutuel wagering on contests, and charitable gaming. Gaming is a multibillion-dollar industry that is responsible for the creation of a number of service occupations.

The majority of gaming services workers are employed in casinos. Some positions are associated with oversight and direction—supervision, surveillance, and investigation—while others involve the games or patrons themselves by tending slot machines, dealing cards or running games, handling money, writing and running tickets, and other activities.

Casinos have workers who direct and oversee day-to-day operations. Gaming supervisors and gaming managers oversee the gaming operations and personnel. Gaming managers also prepare work schedules and station assignments for their subordinates. They are responsible for interviewing, hiring, training, and evaluating new workers.

Managers supervise other workers. Some of these workers need specialized skills—dealing blackjack, for example—that are unique to casino work. Others require skills common to most business workers, such as the ability to conduct financial transactions.

Slot key persons coordinate and supervise the slot machine department and its workers.
Gaming and sportsbook writers and runners assist in the operations of games such as bingo and keno, in addition to taking bets on sporting events.

Gaming dealers operate table games such as craps, blackjack, and roulette.
Education and training. There usually are no minimum educational requirements for entry-level gaming jobs, although most employers prefer workers with at least a high school diploma or GED.

Slot key persons do not need to meet formal educational requirements to enter the occupation, but completion of slot attendant or slot technician training is helpful.

Gaming and sports book writers and runners must have at least a high school diploma or GED.
Most gaming dealers acquire their skills by attending a dealer school or vocational and technical school.

Most gaming supervisor and gaming manager positions, require an associate or bachelor’s degree, but it is not required.

Employment

Gaming services occupations provided 174,000 jobs in 2006. Employment among occupational specialties was distributed as follows:
Gaming dealers
84,000

Gaming supervisors
34,000

Slot key persons
20,000

Gaming and sports book writers and runners
18,000

Gaming managers
4,000

Job Outlook

Employment of gaming service workers is expected to grow much faster than the average for all occupations.

Employment change. With demand for gaming showing no sign of waning, employment in gaming services occupations is projected to grow by 23 percent between 2006 and 2016, which is much faster than the average for all occupations. The increasing popularity and prevalence of Indian casinos and racinos will provide substantial new job openings. With many States benefiting from casino gambling in the form of tax revenue or agreements with Indian tribes, additional States are reconsidering their opposition to legalized gambling and will likely approve the construction of more casinos and other gaming establishments during the next decade. Additional job growth will occur in established gaming areas in Nevada and Atlantic City, New Jersey, as they solidify their positions as tourist destinations.

The increase in gaming reflects growth in the population and in its disposable income. Higher expectations for customer service among gaming patrons also should result in more jobs for gaming services workers. Because of increasing demand in gaming establishments for additional table games, particularly poker, the largest growth is expected among gaming dealers. Conversely, advancements in slot machine technology, such as coinless slot machines—known as “Ticket-in, Ticket-Out machines”—will limit job growth for slot key persons relative to other gaming service occupations. Ticket-in, Ticket-out technology reduces the need for slot key persons to payout jackpots, fill hoppers, and reset machines. Additionally, slot machines linked to a network allow adjustments to be made from a central computer server rather than from the floor by a slot key person. However, there will still be some new jobs for slot key persons because of the casino industry’s focus on customer service and the rising popularity of racinos and slot machines in States that have recently legalized gambling or are expected to do so in the future.

Earnings

Wage earnings for gaming services workers vary according to occupation, level of experience, training, location, and size of the gaming establishment. The following were median earnings for various gaming services occupations in May 2006:
Gaming managers
$62,820
Gaming supervisors
41,160
Slot key persons
22,720
Gaming and sports book writers and runners
18,800
Gaming dealers
14,730

Gaming dealers generally receive a large portion of their earnings from tokes, which are tips in the form of tokens received from players. Earnings from tokes vary depending on the table games the dealer operates, the personal traits of the dealer, and the pooling policies of the casino.

PLEASE NOTE THAT: In Casino and Gaming, the average Gaming Dealer can pump up his or her hourly wage by an additional $18.36/hour to earn over $25/hour. Gaming Dealers' tips represent a whopping 71% of their income.

Why anonymous blogs are not posted on this site

2008-02-24T22:55:00.004-05:00

Anonymity is the source of legalized libel and slander on the internet. My aim here is to post those posts made by responsible persons. If you are willing to put your name to the comment I will publish it--even if it comes under anonymous but has a signature, as long as it is appropriate. No, the questions are not too tough or rough--but I do not always have time to answer them.

As to at least one person who has asked why I do not publish their comments, I have found that person to be completely irresponsible as to the use of blogs and the off issue libelous comments that continue to be posted on their site. I have no obligation to meet that person's needs, and I am sure that that person really has no need to communicate with me anyway. Sorry darling, when you grow up, maybe we can talk.

Our Founding Fathers Believed in Gambling as a Revenue Source

2008-02-22T15:12:00.003-05:00

Gladys Kravits wrote:

“George [Washington] had some pretty strong feelings about gambling. Not only did he outlaw it in his armies, he wrote this formidable admonition to his nephew in 1783.

The last thing I shall mention, is first of importance and that is, to avoid gaming. This is a vice which is productive of every possible evil, equally injurious to the morals and health of its votaries. It is the child of avarice, the brother of inequity, and father of mischief. It has been the ruin of many worthy families; the loss of many a man's honor; and the cause of suicide. To all those who enter the list, it is equally fascinating; the successful gamester pushes his good fortune till it is overtaken by a reverse; the losing gamester, in hopes of retrieving past misfortunes, goes on from bad to worse; till grown desperate, he pushes at everything; and loses his all. In a word, few gain by this abominable practice (the profit, if any, being diffused) while thousands are injured.

Jeez – George sounds just like CasinoFacts! Same stuff, different era.”

But get a load of this:

Early American lotteries were organized to build roads, bridges, harbors, canals, schools, and were even used to help the Continental Congress offset the high cost of the Revolutionary War. Lotteries held during the decade following the war allowed Congress to repay foreign and domestic loans made to the United States in the interest of the revolution.

After the 1700's, the lottery was a favorite past time, especially of America’s founding fathers. Benjamin Franklin financed cannons for the Revolutionary war using lottery money. George Washington operated a Virginia lottery to finance construction of roads to the west. A debt-ridden Thomas Jefferson once held a lottery to dispose of his property and find some badly needed cash. It was Thomas Jefferson who once said, “A lottery is the perfect tax…laid only upon the willing.”

Lotteries, after the adoption of the constitution, were used to fund over 300 schools and 200 churches. The lottery helped found universities such as Columbia, Harvard, Princeton and Yale. The game was used to fund civic improvements, including orphanages, libraries, hospitals, jails and courthouses.

Between 1744 and 1774, 158 lottery licenses were granted in America. About 100 lotteries were held in the new United States between 1783 and 1790. Lottery tickets are believed to be some of the earliest documents to carry the words “United States.”

Shawn Hendricks Round-Up

2008-02-21T16:38:00.002-05:00

I really did appreciate that Shawn took the time to be interviewed on the show. Hopefully, after more pieces to the puzzle are out there, we can have him back.

In any event, I think we had several bits of information confirmed or presented:

1. The Resort will not be up and running "tommorrow," so it is incredibly important that the BOS maintain a fiscally conservative approach to the budget--or we may not still be here when the Resort comes.

2. If the State and the Tribe cannot reach a compact (which Shawn said he really would like to do), the Tribe will still go with a Class II. Despite the surrounding competition, they think they still could have a successful venture.

3. Shawn considers the Governor to be a "friend" to the Tribe, and will keep working with the State to come to some resolution of these issues, but he also believes that the Tribe will be able to address the impacts the Governor raised.

4. The Tribe will not give up its sovereign rights in return for a commercial casino license.

5. Shawn stated that the jobs at the casino will not be just minimum wage jobs, and that there are many jobs at the casino that will be paying good wages.

6. Shawn explained that the Resort means a lot to the Tribe in the sense that it will permit them to govern themselves, provide health care, and to provide educational opportunities to his people. He makes no bones about the fact that his main concern is his Tribe and their future.

7. Finally, Shawn explained that the way the region will get "their piece" is to put pressure on their State Reps and the Governor to make sure that the revenues from the Tribal casino are properly distributed to those places where the impacts are actually felt. It doesn't create a warm fuzzy feeling to be relying on the State, but that is the avenue that the region needs to go. Shawn also said that he would push for the revenues to go to the right areas.

2008-02-18T17:03:00.004-05:00

PERHAPS FOOD FOR THOUGHT, OVER A CUP OF JAVA

Dennis Bailey et al.-- Some thoughts provided to me by an individual in Maine:

Several years ago Maine had a proposal for a casino. At first, the casino looked at two communities Biddeford and Sanford for placement of the facility. They said that they would not go in a community they were not welcomed in. In the town of Sanford there was a PAC called Think About It and it had great success against Dennis.

Casinos No launched a campaign in Biddeford and Sanford. In the town of Biddeford they had a vote and chose not to support the casino in their town. In Sanford there was a non-binding vote, which won for the casino--I guess he has not won them all.

The question was put forward as "do you favor a casino in the town of Sanford". The answer was overwhelmingly YES in every single ward. Dennis failed in that campaign and apparently said residents didn't know what they voted for. Over the course of his campaign, Dennis courted the coastal property owners and the elite of the state to support his cause. Never once did he or his campaign offer any ideas to spur much needed jobs in the area or in the state for that matter. In fact, Dennis apparently took on another campaign shortly after, to turn down a tax measure that would reduce the tax burden for Maine taxpayers, and would encourage reasonable government spending.

Maine is one of the highest if not the highest taxed states in the US. At the time of the casino wars in Sanford, it apparently needed jobs badly and a casino would have offered approximately 20,000+ direct and indirect jobs to residents. Dennis argued that the jobs would be minimum wage ($6.00 at the time), and would not support a household. He also argued that the jobs would go to migrant workers, primarily oriental individuals as he laid out in ads at his Sanford headquarters--imagine that, Orientals working in New England. He also stated that Sanford had no housing to support the new workers and neither did surrounding communities.

Some interesting connections:

Can Dennis explain his involvement with the Scotia Prince cruises that allow gambling. This ship goes right on the coast of Maine, with Maine residents, to gamble. His company Savvy Inc. was supporting and promoting the Scotia Prince as a fun family affair when residents as young as 18 would be allowed to gamble. The casino would have only permitted those 21 or older.

At the same time the Scotia Prince paid no state taxes. They flew international flags, presumably to enable them to dodge federal taxes as well as labor laws--almost like sovereignty. What standards of employee treatment could they get away with? Dennis had no problems continuing to support the cruise line and still continues to support them to this day.

Another client he took on after the casino issue was a couple of Powerballwinners, Pat and Erwin Wales. Dennis had no problem taking their money, event hough he apparently was opposed to gambling.

2008-02-17T11:56:00.006-05:00

February 28, 2008: Mark Belanger (a/k/a "Bellicose Bumpkin" and "Zeus Slapper") will be on for a civilized discussion of casino topics and other local issues. Mark is for a casino-free Massachusetts, and lives in Middleborough, where the Wampanoag resort is to be sited. We both hope to set a good example of how two people can disagree--without resorting to handguns or other concealed weapons. It should prove to be an incredibly informative show, and Mark is full of great information. Please call in, and help us keep the coffee hot!.

2008-02-16T14:22:00.002-05:00

On February 21, from 11:00-12:00, I will be interviewing Chairman Hendricks of the Wampanoag Tribe. I have a number of topics I would like to cover, but I would also like to know what kind of coffee shop topics you want to hear covered. If I can do it, I will. Please, keep it clean and friendly.