The look on Councilor Nancy Driggs’s face spoke volumes, during the April 6 online meeting of the Tiverton Town Council. Recently appointed town solicitor and former state representative from Scituate Michael Marcello was insisting that state laws dealing with local emergency management give the town council president, Patricia Hilton, the power to temporarily amend or suspend state laws within the town.
The look came about 18 minutes into the stream of the video, with Councilor Driggs in the middle panel while below her and to the left, Marcello stated:
Let’s deal with the last argument first, that only the governor can change a state statute, and that is true, but also in the same statute that I cite, it says that the chief executive officer of the town has the same powers and responsibilities and can exercise those powers equal to those of the governor… it doesn’t say equal, but similar to those of the governor… and so therefore, the council president… if the governor can move a state statute in a charter, and I agree with you that it has been ratified, then certainly under the same statute that I cite, and I think it’s cited in that brief, is that the town council president also has the authority because her powers are coterminous with those of the governor’s.
Cutting through that 131-word salad, Councilor Driggs then started to ask, “Are you really telling me that under that statute,” but Marcello interrupted her to say, “yes,” so she rephrased it as a statement: “You can’t tell me that our town council president can come in and amend some state statute.” Marcello then introduced a bizarre term called a “super statute,” which seems like an attempt to put the law into a realm of esoteric jargon that only lawyers are supposed to be able to understand.
Here is the state statute on which Marcello is relying:
The chief executive officer of each city or town has powers and duties with respect to emergency management within his or her city or town similar to those of the governor on the state level, not inconsistent with other provisions of law.
Marcello insists that this language makes every city and town’s “chief executive officer” a fully empowered governor within the borders of his or her town. If during an emergency the governor can temporarily modify a state law passed by the General Assembly, then a town council president or mayor can also temporarily modify that same state law, according to Marcello. This cannot be the case for both grammatical and practical reasons.
On the grammatical side, the language clearly intends to specify, as Driggs explained, that the local officer’s powers apply to the laws that fall under the local government’s purview — that is, local ordinances and policies over which the local council would normally have authority — “similar to” how the governor’s emergency powers extend to the laws within her scope “on the state level.” Otherwise, that phrase — “on the state level” — would be superfluous; the statute could simply say that the local officer has “powers and duties within his or her city and town similar to those of the governor.” Introducing the idea of different “levels” of government makes clear that the powers aren’t “equal,” as Marcello suggested, but separated on different tiers.
Practical considerations show why this must be so. A nearby state statute also says that nothing in this section of the law can “limit, modify, or abridge the authority of the governor to… exercise any other powers vested in the governor under the constitution, statutes, or common law of this state.” If 39 local chief executives can issue orders that potentially conflict with the governor’s in different ways, that is huge interference, and exactly what we should want to avoid during an emergency.
While in the General Assembly, Michael Marcello strove to build a reputation for responsible government from his seat on the Oversight Committee, even challenging Nicholas Mattiello for Speaker of the House. Creating legal arguments to amplify rather than to draw lines around the emergency powers of their political bosses is plainly an irresponsible act from town solicitors.
That is especially true when the emergency isn’t acute and immediate (like a hurricane), but speculative and long-running. Even more so when, as in this case, the would-be monarch, Patricia Hilton, subsequently admitted that the emergency she had in mind had nothing directly to do with COVID-19, but only with the possibility that the timeline might not produce the budget that she wants for the next fiscal year.