PROVINCETOWN — In the aftermath of the April 3 town meeting’s 90-minute dustup over Articles 18, 19, and 20 on short-term rental regulation, some of the 582 registered Provincetown voters in attendance questioned how all three articles could be indefinitely postponed before hardly any discussion on the main motions transpired.
Ultimately, the answer lies in the hazy scope of the town moderator’s discretionary powers.
By all accounts, the moderator has broad but somewhat unclear authority over town meeting. State law says “the moderator shall preside and regulate the proceedings, decide all questions of order, and make public declaration of all votes.”
The General Laws “give the moderator fairly broad discretion and authority over the conduct of the meeting,” said Debra O’Malley, communications director for the secretary of the Commonwealth. “If someone is dissatisfied with the rulings of the moderator, the recourse is generally to elect a new moderator or to challenge those specific rulings in court.”
The town moderator’s main responsibility is “being a facilitator of the conversation as opposed to a decider of the question,” Truro resident and lawyer Mike Fee said. Fee was Sudbury’s town moderator from 2014 to 2017. “In my experience, that takes somebody that’s been around the block a bit,” he added.
Town Meeting Time, a handbook of parliamentary law, is something like the moderator’s Bible: at once categorical and yet open to interpretation, Fee said. It’s not a definitive rule book, he said, “because the types of things that happen at town meeting defy a neat and simple explanation.”
At the Provincetown town meeting, after petitioners Michael Gaucher and Paul Benson (who is a reporter for the Independent) introduced the three short-term rental articles together at the behest of town staff, Moderator Mary-Jo Avellar called on Nate Mayo, who spoke in favor of new regulations on short-term rentals. Applause followed, and Avellar said, “No demonstrations until everybody gets a chance to speak.”
She then recognized Rob Tosner, who moved indefinite postponement. His motion ultimately passed, 270-170.
Faced with a motion to indefinitely postpone early in debate, former Wellfleet Moderator Harry Terkanian said he might have asked the speaker to wait. “I try to encourage town meetings to debate a little before they do that, but if a motion’s made and seconded, we act on it,” he added.
Truro Moderator Monica Kraft agreed. “It can be frustrating, but for a lawfully made motion, it’s not at the discretion of the moderator to simply throw it out and say we haven’t had enough discussion,” she said.
Fee offered a slightly different opinion. While he agreed that moderators cannot just reject a parliamentarily correct motion, “absolutely they can delay it,” he said. “It’s up to the moderator to determine whether or not there’s been sufficient discussion of any given matter before you entertain a dispositive motion.”
Avellar adamantly disagreed. She said that delaying a motion that’s in order would be “absolutely inappropriate. I don’t think it’s the moderator’s job to tell people when they can or cannot make their motions.”
According to Town Meeting Time, a motion to divide the postponement question might not have been in order because such a move “may be applied only to main motions, amendments and instructions to a committee.” A motion to indefinitely postpone is a subsidiary motion and cannot be amended, according to the handbook. But the book also suggests that, had a motion to amend been introduced, interrupting the postponement motion to discuss the amendment would have been in order. In the hierarchy of motions, amendment ranks above indefinite postponement.
“Arguing that the motion to indefinitely postpone should be defeated because there were legitimate questions the town meeting should consider” would be the best strategy in such a case, said Terkanian.
It may be within the moderator’s discretion to hear subsidiary motions out of order or to encourage further debate when postponement comes up early on, but it is not required. Moderators have considerable discretion with regard to the limits of their own discretion.
“Every town meeting is unique,” said Fee. “Whether the town meeting runs smoothly is almost always dependent on the credibility of the moderator.”
“A lot of this is very subjective,” said Terkanian. “What works well in one town can be a catastrophe in another town.”
Avellar said she was unhappy with the use of profanity by some speakers at the meeting. “I understand those articles were very emotional, but it’s supposed to be civil discourse,” she said. “I was very disappointed with the way people conducted themselves.”