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Dysfunction Along the Westerly Way

The Jan 28th edition of The Westerly Sun included a “Highs & Lows” column, entitled: “Yet another Low for Westerly council.” It didn’t make it into the online version as of noon. So, here it is, with running commentary, presented within the original text – (parenthetically, in italics)…

 

Yet another Low for Westerly council

via The Westerly Sun with Mark Sullivan

Westerly Town Councilors Jack Carson & Ed Morrone didn’t submit a performance review of Town Manager Derrik Kennedy by the agreed upon due date and Karen Cioffi didn’t think taxpayers deserved to know that.

So she criticized our reporter, from the council dias, for reporting the facts.

“Shame on you,” she repeated a few times during Monday night’s meeting as she referred to the news story while staring at our reporter.

Shame in him for doing his job and asking a basic question? It would have been considered a mistake had he not asked for it. We aren’t a PR agency for the Town. We’re here to inform taxpayers in an objective manner about what their elected representatives are dong with their money and how they’re running the town.

(Ms Cioffi, who is currently the West Warwick Human Resources director ((and is widely identified as a close associate of Captain Shawn Lacey)) was not ‘elected’ to the council; she was appointed – at the behest of Mssrs Morrone, Aiello & Carson, with whom she has voted, faithfully and unfailingly, throughout her brief tenure on the council.

These little fits of pique have begun to take on the traits of a trademark, and her peevishness, petulance & impatience have reportedly been exported from Town Council meetings to phone calls – during business hours – berating personnel at Town Hall.)

Reporters don’t make news; they report it. They don’t speak at the podium, but report what is said at the podium. It is not their place to engage in back & forth discussion with those they are covering while in the midst of covering the event. And a professional reporter won’t respond even when taunted in a public session they are covering.

There’s a fine line to be sure. Elected officials certainly have every right to criticize the media, just as editorial writers are free to weigh in on the actions of elected officials. But news stories are not editorials are reporters are not editorials writers. To slam the organization is one thing, but to attack a reporter, in public session, from the dias, for reporting the news is unprofessional and simply bad form.

(Indeed, there’s a ironically “Trumpian” quality to the council’s Democratic shenanigans: There’s the derogation of the press, and a strategic impulse that, at turns, evokes the image of a dead-busted Frank Morgan in the ‘Wizard of Oz,’ frantically imploring Judy Garland and her companions to “pay no attention to the man behind the curtain.”)

Carson & Morrone were identified because councilor Mario Celico who, at the time, was leading the council, made reference in public session to two missing evaluations. He did not indicate during the meeting which two councilors had failed to turn in their reviews. But it begged asking. So, after the meeting, the question was posed and answered, as was appropriate.

(Thus Ms Cioffi’s choleric peevishness.)

In a related situation, Councilor Bill Aiello submitted his review to the HR director hours before the council was scheduled to discuss the reviews with the manager. The HR director turned it over to Celico as part of the package of reviews from councilors & Town Hall staff, as planned. Carson said the handoff of a single review tainted the process by identifying the author to Celico and giving him access to it.

(Mr Carson’s position in this point is virtually inexplicable. The rules were made plain and agreed upon in advance. The document says what it says, and was written by whomsoever wrote it. Accordingly, the ‘taint’ to the process was not in the handoff; the review was delinquent. As such the fault lies with Mr Aiello who, to be fair, should be given some credit, by virtue of the “better late than never” rule.)    

We have all learned since, based on our reporting, that the evaluations were not submitted because after agreeing to a process that called for the town’s HR director to collect the reviews, some on the council didn’t trust the process late in the game. So, they didn’t play be the rules they agreed to. And reason defies that logic. Carson said he was vindicated for not submitting an evaluation to HR since the Aiello review handoff proved the process was “politicized” in his words. Should Celico have declined to include it in the packet because it was late? No.

(“…because after agreeing to a process … some on the council didn’t trust ‘the process’ late in the game…” In any other game, this would be considered “cheating.”
And Mr Carson’s claim of “vindication” after the fact, is plainly nonsensical. Had he a hunch that the taint of “politicization” had corrupted the process, he had a duty to either investigate that theory or submit his review. Having done neither, his wrongdoing is plain and his rationale, specious.)

The council’s dysfunction has sunk to a new low, and it’s taking any semblance of professionalism with it.

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The Thrust & Parry of The Westerly Way

Long before the dawn of a miserable January Tuesday, a portentous Town Council Meeting took place here in our Little Town of Westerly, in which the new crew, now running the show, took to sampling the midnight oil, which likely made for a lugubrious morning after.

The meeting itself was a rather pedestrian affair.  Councilor Morrone was a little behind the curve in the center chair – which, to be fair, was to be expected. The sound system, in the hands of a seasoned technological newbie, who admittedly carries a flip-phone and, as best one can tell, is just plain not-on-line, took on a NASA-level of complexity.

Parliamentarily speaking, the gaffes were few, and probably a bit pedantic to the casual observer. There was a slew of resolutions and three public hearings – one pertaining to some sort of financial transaction involving the animal shelter, another contemplating the contemplation of a town-wide system of bike paths, and, of course, it wouldn’t be a town council meeting without an interminable intrusion into the proceedings by which the saga of the airport and its neighbors could be revisited.

To that point, a quibble: One of the themes evoked by the airportians involved a preceding meeting, at which the unyieldingly persistent matter overwhelmed those in attendance, and the evening lingered well into the wee, small hours. At Monday’s session, one regular kvetcher revisited the post-midnight experience in an unexpected manner, expressing quizzical outrage over the climactic moment, which took place at about quarter to one, with but two people left in attendance – both of whom were (gasp!) NON RESIDENTS.

The basis of the complaint involved a vague notion that a guy from Wakefield hijacked the airport discussion, in concordance with a conspiracy of non-specific provenance, by which the meeting was made to drag on for over 7 hours.

The fact of the matter is this: When 20 people descend upon Town Hall, for the purpose of speaking for fifteen minutes apiece, so as to deliver essentially the same message over and over again, the math speaks for itself. Which is to say – factoring in the perfunctory applause following each & every reiteration, the routine fumbling of the baton between one speaker & the next, and the intermittent clock stoppages for rulings on mind-numbingly arcane matters – the Citizen’s Comment portion of the evening accounted for five-freaking-hours.

But I digress.

An airport overlay ordinance was, at long last approved, which would seem to suggest that the airport conversation is, at long last, over – but I think we all know better.

So… On we went from there.

The new regime proposed amendments to three of The Rules of Procedure by which The Council is Governed. The first involved the residency requirement attendant upon participation as a voting member of any of the Town’s Boards, Committees and/or Commissions. This matter engaged some of the more tribal impulses on the Council and in the audience. The question itself was occasioned by requests for relief from this restriction on the part of the Substance Abuse Prevention Task Force and the Westerly 350th Anniversary Committee.

As for the former: The Task Force is designed to include 15 members, with three representing the general public and the remaining representing various sectors of the community (I.e., health care, law enforcement, religious organizations, substance abuse experts, social services, etc.) Several well-qualified candidates for many of these positions have been turned away on account of their residing in Hopkinton, Charlestown, Pawcatuck, etc., which, in the eyes of more than a few, disqualifies them from loaning their expertise to this rather vital community function. Furthermore, the vacancies in these positions imperil the grant funding for the Task Force.

As for the “Fighting 350th” it’s a matter of snowbird syndrome and it’s a one-off event. The fact is that there are a few folks who – to hear them tell it – may well have been alive when Westerly was founded in 1669. They were born here; they grew up here; advanced their careers & raised their children here. Then, they retired to Florida, where they spend more than half the year, thereby negating their residence here in the southwestern corner of the Ocean State. They’d like to participate in the Anniversary observance in an official capacity, but they can’t because they’re technically Floridians.

One suggestion proffered for these two outlying circumstances, was to enhance the function & responsibilities of the Appointment Committee, which (nominally) vets every candidate for every Board Committee and/or Commission of the town. Right now, the vetting process is, for the most part, a virtual rubber stamp.

These matters were tabled for future consideration – as was the question as to the Council’s meeting schedule.

The current rule provides for the council to meet thrice monthly – perhaps less in the summer. Three times twelve equals 36. In 2017, the Council met 87 times, which is 150% more than the rule requires. Nevertheless, the new leadership wants to reduce the standing schedule.

And finally came the question of successfully modifying Citizens Comments which, as aforementioned herewith, is simply not possible in this community.

By this point in the evening, it was already past the standard geriatric bedtime, so all was dispensed with – save the matter of executive session – or, in this case “potential executive session.”

Long story short: Stuck in the collective craw of the newly established “Gang of Four” now running the show at Town Hall, is a burning desire to do two things:

One is to retain the services (in some form or fashion) of Shawn Lacey, the Captain of the PD and a longstanding, conspicuous, popular and much admired member of the community. A rather peculiar Public Law (I.e., a state law that is applicable only to specific locales in the state) adopted in 1938 provides for the mandatory retirement of police personnel here in Westerly upon completion of 30 continuous years of service. Capt. Lacey’s term expires on Jan 24 2018.

So as to achieve the goal of retaining the Captain, the new crew shoehorned a non-standard item onto the council agenda entitled “Potential Executive Session,” the nominal purpose of which was to discuss the job performance of an unnamed town employee (which everybody knew was Capt. Lacey.) The item’s seeming intent was bogus on its face, as this was, in fact, not a performance review; it was a strategy session by which to devise a means, by which to circumvent the aforementioned law. Moreover, it is the responsibility of the Manager – and not the Council – to evaluate town employee performance. In any event, before any of this could happen, the propriety of the language used in the shoehorned agenda item had to be parsed, and a vote was required in order for the Council to go into any form of executive session, “potential” or otherwise.

This niggling detail led to the parliamentary equivalent of men writing their names in the snow. Flurries of motions and seconds were made, challenged and withdrawn – including one to “abide by the Town Charter,” which, for reasons almost beyond imagining, was actally voted down by the prevailing Gang of Four. Heated discussion and expressions of outrage ensued and, at length, the body retired to the back room to commence with the sausage making.

A few hours later, they emerged with “no action taken.” (One can only imagine the manner of crazy infesting that parley.)

Thus, we happen upon the remaining object lodged in the collective craw of the prevailing faction, the Town Manager, Derrik Kennedy, who, notwithstanding a few high-profile missteps & misadventures, has consistently thwarted his detractors with his deft management of the various departments & functions of the town. Despite his commendations and otherwise manifest successes, his professional fate as the Westerly Town Manager, hangs in the balance.

Theories abound as to the intended endgame strategy of the recently reorganized Council. One of which envisions Capt. Lacey replacing Mr Kennedy, which brings us to at the dénouement of last nights shenanigans:

As mentioned, it falls to Kennedy to evaluate, hire and/or discharge all town employees – be it “for cause” or a matter of Town policy, local ordinance or Public Law.

Nobody knows what went down in the backroom in the wee small hours of a foggy Tuesday morning, where competing appetites – to get rid of Kennedy or get rid of Lacey – were contested. That “no action taken” in the seemingly “kinetic” executive session, would seem to suggest that the result came in the form of the only solution to the broader issue.

The circumstances require the Council to direct the Manager to do his job. His job entails abiding by the Town Charter and State Law. It’s now a matter of interpretation. We shouldn’t be long before we know, one way or the other.       LaingB4

The Opinion of the RI Supreme Court regarding beach access in the Ocean State

This 1982 OPINION of Rhode Island Supreme Court Justice Donald F. Shea has been bowdlerized & otherwise edited by a lay person, for laypeople.

STATE v. James IBBISON III et al. July 20, 1982. 

In this case we consider a question involving the interpretation of a provision of our state constitution. Article I, section 17 of the Rhode Island Constitution, as amended by Art. XXXVII, provides that the people of the state “shall continue to enjoy & freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state.” The question raised is this: To what point does the shore extend on its landward boundary? The setting of this boundary will fix the point at which the land held in trust by the state for the enjoyment of all its people ends and private property belonging to littoral owners begins.

The defendants in this case, James Ibbison III, et al, were convicted at District Court in February 1979 of criminal trespass in violation of the Westerly Code prohibiting a person from knowingly entering upon the land of another without having been requested or invited to do so by its owner or occupant. The defendants were each fined $10 plus costs. They appealed their convictions to the Superior Court. In December 1980, a justice of that Court granted their motion to dismiss the charges. The District & Superior Court justices reached different conclusions based on their fixing the boundary between the shore & littoral owners at different points. The state has appealed the dismissals.

This dispute arose as defendants were engaged in a beach-clean-up operation in Westerly. As defendants traveled along the beach, they were stopped by a littoral owner, and a WPD Patrolman. The owner, believing his private property extended to the mean-high-water line, had staked out that line previously, and informed defendants that they were not permitted to cross the landward side of it.

The defendants believed that their right to traverse the shore extended to the high-water mark, which they defined as a visible line on the shore indicated by the reach of an average high tide, and further indicated by drifts and seaweed along the shore. The parties have stipulated that defendants had crossed the mean-high-tide line but were below the high-water mark at the time of their arrest, and that, at the time of the arrest, the mean-high-tide line was under water.

We have referred to the term “high water mark” as used by defendants and accepted by the Superior Court. We shall now discuss the term “mean high tide line,” which is relied upon by the state as the proper boundary, and is the line accepted by the District Court. The mean high tide is the arithmetic average of high-water heights observed over a nearly 19-year Metonic cycle. It is the line that is formed by the intersection of the tidal plane of mean high tide with the shore.

The issue before us is in reality very narrow as the prior decided cases of this court have consistently recognized that the shore lies between high and low water. The shore has been designated as “land below high-water mark,” in numerous cases dating back to 1871—none of which deigned to define how the high-water line is to be calculated. Although no prior Rhode Island case explicitly resolves the question before us, there are two somewhat helpful cases: In Allen v. Allen 1895, this court stated that “the State holds the legal fee of all lands below high water mark as at common law.” (In a legal context, the word “fee” indicates possession). In Jackvony v. Powel (1941), the court held unconstitutional under Art. I, sec. 17 a statute that would have permitted the city of Newport to erect a fence at Easton’s Beach between the high-and low-water marks.

The interesting point about the Allen case is the court’s reliance on the common law in finding that the state holds title to all lands below the high-water mark because, at common law, the boundary was the mean-high-tide-line. Here again, we believe that the Allen court uses these terms interchangeably.

It is difficult to discern any real difference between the two positions argued here. By definition, the mean high tide is, in reality, an average high tide. Similarly, defendants have defined the high-water mark in terms of an average. The defendants contend that their high-water mark is such, however, that it is readily observable because of drifts and the presence of seaweed. Our difficulty in accepting this position is that we have absolutely no evidence before us from which we could determine that this is generally true. We are handicapped by the absence of a record in this case. For this reason the only permissible action for us to take is to affix the boundary as was done at common law and which this court in Allen declared to be the settled policy of this state.

The common-law background of this issue can be traced back several hundred years. Originally, land titles in England came from a grant from the Crown beginning back during the reign of King John which ended in 1216. These early grants were imprecise, however, especially due to the lack of definition of the seaward boundary of coastal grants. The grantees, however, no doubt viewed their property as extending to the sea.

In 1568-1569, Thomas Digges, a mathematician, engineer, astronomer and lawyer, wrote a short treatise in which he concluded that the tidelands had not been included in the grants of the seacoasts by the Crown. This work went largely unnoticed until 1670 when Sir Matthew Hale incorporated Digges’ theory into his very influential treatise De Jure Maris, in which he defined the shore as that ground between the ordinary high- and low-water marks. This doth prima facie and of common right belong to the king, both in the shore of the sea and the shore of the arms of the sea.”

After this time, the burden of proof was placed on landowners to show that their particular property extended to the low-water mark, and not the high-water mark. The burden placed this way made it very difficult for landowners to overcome.

This was the state of development of English law at the time of the colonization of the eastern shoreline of North America. After the Revoluntary War & the formation of the Republic, the individual states retained their own tidelands as they had previously. In a series of US Supreme Court decisions between 1842 & 1935, the Court confirmed individual state ownership of the tidelands.

There had been some uncertainty in the United States regarding whether the boundary was properly at the point of the mean high tide or the mean low tide, but this uncertainty was largely removed in 1935, when it was held that the common-law rule put the boundary, between littoral owners and the state, at the line of the mean high tide.

The Court reviewed a Court of Appeals decision setting the boundary between land claimed by the plaintiff under a federal preemption patent and the State of California at the mean-high-tide line. The Court’s analysis of this issue’s common-law history included the writings of Sir Matthew Hale.

In affirming the Court of Appeals, the Court concluded as follows:

“The tideland extends to the high water mark. This does not mean, as petitioners contend, a physical mark made upon the ground by the waters; it means the line of high water as determined by the course of the tides.

“By the civil law, the shore extends as far as the highest waves reach in winter. But, by the common law, the shore is confined to the flux & reflux of the sea at ordinary tides.’ It is the land between ordinary high & low-water marks, the land over which the daily tides ebb & flow. When, therefore, the sea, or a bay, is named as a boundary, the line of ordinary high-water mark is always intended where the common law prevails.”

Having identified the common-law boundary of the shore as the land between the “ordinary high & low-water marks,” the Court described how the line is to be determined, as the range of the tide at any given place varies from day to day. At a new moon and a full moon, the range of tides is greater than average because at these particular times, high water rises higher and low water falls lower than usual. The tides at such times are called spring tides. Correspondingly, when the moon is in its first and third quarters, the tide does not rise as high or fall as low as on the average. During these times, the tides are called neap tides.

The Court noted that at common law the spring tides, the highest tides of the month, were excluded as the landward boundary of the shore since, for the most part, this land was dry and not reached by the tides. Presumably, the point reached by the spring tides is the same point as that argued by defendants as being the high-water mark evidenced by drifts and seaweed.

Recognizing the monthly changes of the tides, the Court recited the following formula, used by the Court of Appeals, for finding the mean-high-tide line:

“In view of the definition of the mean high tide, as given by the United States Coast & Geodetic Survey, that ‘mean high water, at any place, is the average height of all the high waters at that place over a considerable period of time,’ and the further observation that `from theoretical considerations of an astronomical character’ there should be a `periodic variation in the rise of water above sea level having a period of 18.6 years’ the Court of Appeals directed that in order to ascertain the mean high tide line with requisite certainty in fixing the boundary of valuable tidelands, such as those here in question appear to be, `an average of 18.6 years should be determined as near as possible.’ We find no error in that instruction.”

We concur in this analysis and apply the mean-high-tide line as the landward boundary of the shore for the purposes of the privileges guaranteed to the people of this state by our constitution. This court has held that the common law governs the rights and obligations of the people of the state unless that law has been modified by our General Assembly.

Here we apply the common law to govern the interpretation of a constitutional provision.

In fixing the landward boundary of the shore at the mean-high-tide line, we are mindful that there is a disadvantage in that this point is not readily identifiable by the casual observer. We doubt, however, that any boundary could be set that would be readily apparent to an observer when we consider the varied topography of our shoreline. The mean-high-tide line represents the point that can be determined scientifically with the greatest certainty. Clearly, a line determined over a period of years using modern scientific techniques is more precise than a mark made by the changing tides driven by the varying forces of nature. In a 1958 Texas case, the court concluded that “common sense suggests a line based on a long term average of daily highest water levels, rather than a line based on some theory of occasional or sporadic highest waters.”

Additionally, we feel that our decision best balances the interests between littoral owners and all the people of the state. Setting the boundary at the point where the spring tides reach would unfairly take from littoral owners’ land that is dry for most of the month. Similarly, setting the boundary below the mean-high-tide line at the line of the mean low tide would so restrict the size of the shore as to render it practically nonexistent.

Finally, setting the boundary as we have done brings us in accord with many of the other states.

We note that in a couple of such cases the term “high water mark” is used in place of “mean high tide line”. However, this is inconsequential as each state defines the phrase in terms of the mean high tide.

This brings us to the actual disposition of this matter. In view of the lack of clarity in early decisions of this court regarding whether the landward boundary of the shoreline was to be computed as a mean or as an absolute high-water mark, we shall affirm the dismissals of the charges by the Superior Court justice–but for different reasons. It is well settled that this court may sustain judgments entered herewith even though we do not accept that court’s reasoning.

We affirm the dismissals since basic due process provides that no man shall be held criminally responsible for conduct that he could not reasonably understand to be proscribed. Although this situation most often occurs when statutes are challenged for vagueness, we find that the facts of this case are such that these defendants are entitled to similar protection.

In the future, any municipality that intends to impose criminal penalties for trespass on waterfront property above the mean-high-tide line must prove beyond reasonable doubt that the defendant knew the location of the boundary line and intentionally trespassed across it.

For the reasons stated, the appeal is denied and dismissed, the granting of the motion to dismiss is affirmed, and the papers of the case are remanded to the Superior Court.

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