Minutes for Charter Enforcement
Commission meeting.
November 26, 2002
7:00 PM
In Attendance:
Members:
Peter Garza
Fred Pappalardo
John Braden
Amanda Fetrow
Also attending:
Richard Conley
The Charter Enforcement Commission met today to address a petition submitted to
it by Provincetown voter Richard Conley. The petition was received by Town
Clerk on November 20, 2002.
The meeting began at 7:01PM and after a brief introduction of the members of
the Charter Enforcement Commission, as well as a brief explanation of how the
meeting was to proceed; the petitioner was asked to present his case.
Richard Conley then read a prepared statement:
“On May 16th, 2002, the Board of Health held a public
meeting to address the issue of smoking in public places. Of the approximately
seventy people who attended the meeting, only three spoke in favor of their
proposed regulation to ban smoking in public places and more than a dozen spoke
against it. Two of the three people that spoke in favor of the regulation were
not even Provincetown residents (one was a man from the Tobacco Control Board
and the other was Paula Speery, a resident of Eastham). We learned at that
meeting that the Board of Health received three letters from the public in
favor of the regulation and five letters against it. In addition, a petition
signed by almost 550 Provincetown residents opposed to the regulation was
presented to the Board of health.
“That same night, the Board of health voted to enact the regulation despite the
fact that the vocal opposition outnumbered its proponents by 98%. The Board of
Health blatantly ignored the will of the citizens of Provincetown and by doing
so made our citizens look foolish and made a mockery of the democratic process.
Board of Health decisions should be based on what is determined to be the will
of the people during public hearings and not based on their own personal views.
“In a democracy, our form of government, the citizens vote for and elect
officials to represent them in government. None of the citizens of Provincetown
voted for the Board of health that enacted this regulation, which has had a
tremendously negative impact on the quality of their lives. Regulation without
representation is fascism.
“I am asking you to examine Provincetown’s Charter and the Massachusetts
Statute regarding this issue to determine the extent of power granted to Boards
of Health and if there is any distinction between powers granted to appointed
versus elected Boards of Health. Whether you agree with the Board of Health
regulation or not, you must agree that there was no democratic process involved
with the enacting of this regulation”.
Fred Pappalardo (Chair) read the Board of Health’s duties according to the
Provincetown Charter (Section 8-6-2); “The Board of Health shall exercise the
powers and duties prescribed by the Massachusetts General Laws, The
Provincetown General By-Laws, and this Charter” and also the Massachusetts
General Laws (MGL) (Chapter 111 sect 31) from which the Board of Health claimed
as the authority to make the pertinent By-Law: “Boards of Health may make
reasonable health regulations”.
Several members of the Charter Commission asked questions of Mr. Conley.
Peter Garza asked Mr. Conley if his question was that the Board of Health was
acting outside of its authority or just against the will of the people.
Mr. Conley answered that he thought that it acted against the will of the
people, and that it was unclear if it acted outside of its authority because of
the “appointed versus elected” status.
Dr Pappalardo mentioned that the Board, being appointed and not elected, was
enacting legislation without the town population having representation. To pass
a by-law effecting the town’s population to the extent that a smoking ban does,
probably should have come after a referendum vote by the town’s voters. It is
unclear whether MGL gives our appointed Board of Health the authority to
override the will of the population. That would be “ legislation without
representation”. MGL statement that Boards of health may make reasonable health
decisions seems very broad and should be better defined. “Do 4 non elected
appointees have that authority? It could follow that they also would have the
authority to ban the sale and consumption of all alcoholic beverages, the sale
of all tobacco products, gamboling, even riding bicycles without a helmet, if
such a broad definition of “reasonable” exists.
Mr. Garza mentioned that there were cases of smoking bans being over-turned in
other towns within Massachusetts.
Dr Pappalardo mentioned that in the town of Wakefield, Mass voters overturned a
smoking ban instituted by their appointed Board of Health.
Ms. Fetrow suggested that it would be a good idea to ask Town Council to define
the legal power of an appointed Board versus an elected one, and also to define
a “reasonable” health regulation. (MGL Chapter 111, Section 31).
Mr. Garza mentioned that this could indeed be a case where the “One man/ One
vote” democratic process has been ignored, and therefore this case may be worth
assessing. Dr. Pappalardo and Ms Fetrow agreed.
Mr. Braden offered a motion to follow Ms. Fetrow’s suggestion and have Town
Council look into the regulation and get back to the Charter Enforcement
Commission with its assesment. The motioned was seconded by Mr. Garza, a vote
was taken, all 4 members voted in favor (4-0)
A motion was made by Mr. Braden to adjourn the meeting and reconvene at a later
date after hearing from Town Council. Ms. Fetrow seconded, a vote was taken and
all members voted in favor (4-0);
The meeting was adjourned at 7:21 PM
Submitted December 3, 2002
John Braden, secretary