As reported, Great Barrington is convening a Special Town Meeting on Monday, June 29. Well, the town is calling it a “special” meeting, but it is really a “do-over” made necessary when voters disapproved the Proposition 2½ override, signaled little interest in higher taxes in perpetuity, and were left with the need to fund some very worthy programs and causes.
Four articles await. Decisions on two are easy, one less so, and one deserves a hard “you’ve got to be kidding me, no.” Please consider the following a primer for how to vote on Monday night (and, please, do come vote).
Articles 1 and 4: the easy part. Article 1 asks the town to allocate $341,964 from Free Cash for lifeguards at Lake Mansfield, a skatepark monitor, the co-responder program, a parking enforcement officer, and the VFW and American Legion leases. Article 4 appropriates $86,899 to finish paying the Southern Berkshire Ambulance Squad’s assessment. These are the services voters already endorsed or would have endorsed at the May Annual Town Meeting, before the override’s defeat left them stranded. This is the low-hanging fruit. We should vote to fund them.
There is one barnacle on Article 1 worth scraping off: $75,000 in legal fees to have the Department of Public Utilities determine what Great Barrington should pay for Housatonic Water Works (HWW). The Finance Committee declined to recommend it, to which Selectboard Vice Chair Eric Gabriel directed this comment: “I’m going to vote yes, and I’m going to invite everybody that voted no to my house to shower this summer and drink some water out of my tap.”
We can all agree the turbid water at Vice Chair Gabriel’s home is not ideal, but town spending should be grounded in reason, not anger. Before the town commits $75,000 of your tax dollars, it owes voters an answer to the question Gabriel skips past: How does Great Barrington intend to swing the purchase of HWW at all? No one has pushed harder in these pages, year after year, for a resolution of the Housatonic problem than I have, but at some point voters deserve to know whether it is realistic to think the town can afford a utility that needs $40 million in repairs over the next 20 years. If it cannot, this $75,000 is simply going down the drain.
Spending money to price a utility the town has shown neither the means nor the settled will to buy is window shopping. If the Selectboard has a realistic acquisition plan—a bonding strategy, a grant, a legislative earmark, a winning lottery ticket, striking oil—tell the voters that plan before this vote. Funding the appearance of progress, rather than progress itself, makes no sense.
Article 2: the sealed piggy bank. Article 2 asks voters to set aside $1 million from Free Cash for “costs, claims, and liabilities” arising from the town’s capital-project procurement—in plain terms, a war chest in case the town loses the lawsuit Morais Contractors filed over roughly $870,000 in invoices on a street-reconstruction job.
Before we vote to lock away $1 million for what could be years, we should note the case made by David Long in his particularly good letter in The Edge this week, urging a “no” vote as premature. An even simpler question: Why?
When I was a child, my mother gave me a sealed piggy bank. In hindsight, that seems somewhat cruel, presumably because she did not trust my ability to save. A $1 million set-aside is the town’s version of that sealed bank: a vote to protect the town from its own temptation to spend. But unlike six-year-old me, the town has already proven it does not need the seal. Free Cash is itself a piggy bank, and the town needs no Town Meeting vote to refrain from spending money. If officials worry the town might someday owe $870,000, they can leave $870,000 untouched in Free Cash until the litigation resolves. No appropriation, no reserve, no ceremony. Just don’t spend it.
We know the town is capable of discipline. When cannabis retailers sued to recover their community impact fees, the town did not rush to reserve more than it might owe. It left the disputed fees parked in Free Cash and litigated to settlement. Great Barrington collected roughly $6.34 million in impact fees, returned about $4.7 million, and pocketed the difference. No Special Town Meeting vote required then, and none required now.
Here and now, the case for restraint is stronger. The town has real defenses to this contract dispute. If a town vendor delivers $2.6 million in concrete work based on a contract authorized to spend only $1.1 million, municipal law provides that the vendor bears responsibility. Just as the law protects children who lack the capacity to contract, the law protects municipalities by requiring that their obligations be properly authorized and appropriated. For exceptionally good reasons, the risk of an unauthorized contract falls on the vendor, not the taxpayers.
Keep in mind, a $1 million reserve does not sit harmlessly in a drawer. It crowds out the lifesaving paramedics/EMTs, lifeguards, and the co-responder we need—the very services in Articles 1 and 4. Setting aside $1 million to insure against a loss the town has every reason to avoid is not prudence. It is a concession, whispered to the plaintiff, that the case is already lost. It is not.
At the June 16 joint Selectboard-Finance Committee meeting, the Selectboard landed on recommending $500,000, setting half a loaf aside. But the lawsuit is binary. Either Great Barrington owes the contractor for unauthorized change orders or it does not. There is no version of this case in which the answer is “exactly $500,000.” Reserving half the demand splits a difference that does not exist. Unless you are a doomsday prepper laying in provisions for the end of days, you do not stock the basement against an event you have sound reason to believe will never come.
Vote no on Article 2. Leave the money in the piggy bank.
Article 3: fund the fight. Which brings us to the one new expenditure worth appropriation. Article 3 appropriates $200,000—drawn from the Stabilization Fund, so it does not raid Free Cash—for the consultants and lawyers to examine the procurement mess and litigate the Morais claim. This is not throwing good money after bad. This is the money that proves the town does not owe the bad money. Fund the defense, and let it work.
The tally: Yes on Article 1, minus the $75,000 in legal fees to price a utility the town cannot afford to buy; no on Article 2; yes on Article 3; yes on Article 4. We did not over-reserve for cannabis, and we came out ahead by not overreacting. Let’s run the same play. Leave the money in the piggy bank, fund the litigation defense, and let the town prove what it has every reason to believe: that it does not owe the contractor $870,000, for the reasons I set out in a prior column.
Author’s Note: I am a member of the board of the Southern Berkshire Ambulance Squad. The opinions expressed are my own but hopefully shared by others.
Survey Monkey Questions
Here is a link to the following survey:
- Great Barrington has spent years and substantial legal fees exploring a purchase of Housatonic Water Works, which needs an estimated $40 million in repairs. Should the town spend another $75,000 to set a purchase price before it has a plan to pay for the utility?
- Morais Contractors is suing the town for roughly $870,000 on a street project authorized at $1.1 million that grew to $2.6 million. The town has asserted multiple defenses and demanded a jury trial. Should the town set aside $1 million now, or leave those funds unreserved while it litigates?
- If the town owes the contractor nothing unless it loses in court, does reserving $500,000, half the demand, as a compromise make sense?
Survey Monkey Results
- The town plans to ask voters on June 29 to set aside $1.2 million to settle the Morais lawsuit. The town has also filed 11 legal defenses and demanded a jury trial. What should the town do? As of publication 88.24 percent of respondents said, “defend the case in court.”
- When a municipal contract grows far beyond the amount that was competitively bid, who should bear the cost of the unauthorized overruns? As of publication, 90.91 percent of respondents said, “the contractor.”
