The Brookfield Board of Selectmen (BOS) and Board of Finance (BOF) have been at odds over whether to include advisory questions on this year's budget referendum. The BOF hold it as within their purview to ask residents whether they believe the budget, in two parts or as a whole, is too low or too high. The BOS, on the other hand, has taken the position that there is no power in the Town Charter authorizing them to ask advisory questions.
At the April 20 meeting of the BOF after the two public hearings, the board discussed the option of adding advisory questions and voted unanimously to do so. At the time, BOF Chairman Bill Tinsley stated that while the decision to split the budget vote was the discretion of the BOS, the BOF retained the right append advisory questions, citing CT General Statute Section 7-344, under Town Boards of Finance (Chapter 106).
First Selectman Bill Davidson disagreed, but did not pursue the matter further, other than to voice his opposition to advisory questions when asked. "I won't hold a lot of stock in the questions of too high or too low," he said during the April 20 meeting, "Personally, not speaking for the Selectmen, I think it tells you almost nothing."
After being asked to look into the issue, Brookfield Town Attorney David Grogins (who also acts as counsel for Newtown, which is dealing with the same issue) submitted an opinion, , stating that advisory questions are not actually permitted under the town charter as they are not mentioned anywhere within.
In a letter addressed to the Town Clerk, Tinsley suggested that language in the town charter granting powers to town agencies includes those "granted to towns under the Constitution and CT General Statues" (Article I, section C1-3). "Therefore, the budgetary process powers granted to the Board of Finance in Charter Article VIII are an addition to the grants in Chapter 106, Section 7-344," Tinsley argued.
According to Grogins, Article I, section C1-3, applies only to those statutes not directly addressed in the town charter. "If there is a statutory scheme in the charter, that is what should be followed," he explained, citing a 2004 CT Supreme Court case (also cited in his official opinion), specifically regarding Section 7-344, that gives "home rule" priority to local issues.
The case, Board of Education v. Town and Borough of Naugatuck, concerned a conflict between Naugatuck's charter and the General Statutes. The town charter included an amendment allowing for separate ballot questions, whereas the General Statutes did not.
The Court's decision, in part:
We therefore turn to the question of whether §7-344 relates to a matter of statewide interest or to a matter of purely local concern. We agree with the town that the answer to that question can be found in Caulfield v. Noble, supra, 178 Conn. 81, and its progeny.
In Caulfield, we held that General Statutes (Rev. to 1977) §7-344 did not preempt a town charter provision that conflicted with that statute's budget setting procedures. Id., 93. Although the dispute in Caulfield centered on a different provision of §7-344 than the dispute in the present case does, essential to our holding in Caulfield was the predicate conclusion that matters concerning a town budget are of local rather than statewide concern. Id., 90. We therefore held, on the basis of this predicate conclusion, that general laws pertaining to such matters, such as General Statutes (Rev. to 1977) §7-344, "do not supersede the provisions of home rule charters or ordinances on the same subject." [emphasis added] Id., 91.
We subsequently have reaffirmed our determination in Caulfield that, in an area of local concern, such as local budgetary policy, general statutory provisions must yield to municipal charter provisions governing the same subject matter.
As Brookfield's charter has a "detailed regulatory scheme" for the entire budget process, Grogins maintains that it overrules state statutes, both in express powers and omissions. Despite the fact that the allowance for advisory questions in 7-344 is not in direct conflict with the town charter, as it was in the case of Naugatuck, the town's powers are limited to the charter, according to Grogins. "There are no powers by implication," he said, adding that, "You can't pick and choose which provisions to go by."
The notice of the annual Town Meeting (Tuesday, May 4) has been finalized, recommending a single question on the ballot: whether to approve $53,734,532 as the budget for fiscal year 2010-2011. Residents will be asked to approve a referendum date of Tuesday, May 18, and approve or reverse the BOS recommendation to vote on a combined education and municipal budget.
As the charter makes no mention of advisory questions, there is no procedure in place to add them after the Town Meeting has set the referendum date.