Letters to the Editor -- September 19, 2008

Thanks to the wonderful community!

My family and I wish to express our thanks for all the cards, calls, food and other expressions of sympathy during the illness and passing of Ed Lowe.

The support and concern shown by so many people in this community we live in truly helped carry us through this time period, and the time to come.

I believe God works through people, and the people in this area are proof of that. Thank you again.

Martha Lowe and family

Mitchell explains thoughts on police chief

I voted last night to transfer the reporting requirement of the chief of police from the mayor to the town manager. My reasons have partly to do with the fiscal responsibility campaign plank I ran on, following the council manager form of government and maintaining the equation of power in the town charter.

My reasons have nothing to do with the chief of police, as some would say. I have constantly supported him, both in private conversations and in public declarations on the Town Council. Last night, I told him I still supported him and “from the bottom of my heart” I wanted him to continue in his position. He curtly told me that he would see me in court and would depose me. Can I still support him after his language last night? I don’t know.

Here are my reasons, as well as answers to some of my critics:

(1) The charter specifies that the town manager is the chief administrator officer of the town and serves as head of the administrative branch of government. It says that the town manager can appoint and remove all subordinate offices and employees of the town. Thus, this provision conflicts with chief’s contract. If the previous council which signed the contract wanted the chief to report to the mayor, then they should have pursued the amending the Town Charter.

(2) The charter says that all Council members, including the mayor, have one vote on the Council, and, thereby, the Charter asserts the premise that there is a relative equality of power between the mayor and all council members. The mayor’s duties are minor and are viewed part as a weak-mayor form of the council manager. They include the following: He is head of government for ceremonial purposes only. He presides over the Council. He has some appointive power, but this is subject to approval of the Council. He can call an emergency meeting of the Council.

This is the problem: The chief’s contract gives the mayor substantial additional power thus destroying the careful equation of power set up by the Charter. The contract allows the mayor to supervise the largest department of the town, preside over 54 percent of the town’s budget and dictate policy on public safety. If the contract is allowed, it would change the premise of our form of government to a strong-mayor form. This was not the intent of the charter, nor does it square with the legislative history of the charter.

(3) The mayor’s power could be used to frustrate the majority on the Council and there is some evidence of that is what happened in the past. The previous mayor, allied with the chief, pushed through our present 15,000-square-foot police station and spurred on excessive expenditures in our police station.

Our present mayor has taken efforts to delay this transition of reporting authority since April in executive session. So his effort of frustrating the majority on the council has been effective until last night. He has spurned efforts of compromise on this issue. In fact, he has been totally co-opted by the “police lobby” and CAP on this issue. Our charter contemplates that policy is made by majority on the Council, not one individual councilman or the mayor. We must work as a team, if at all possible.

(4) Section 2.313 of the Town Charter gives the Council many specific powers. Under subsection D it says that “all the powers of the government shall be carried into execution as provided by the Charter or by any other law of this State or as provided by ordinance of the town government of Ocean View.” It does not mention “contract.” I am not arguing that the Town cannot contract, but I argue that the charter does not allow powers that are executed by contract. Any contract allowing the delegation and execution of the legislative power would violate the Charter. It is a specific power of the Council to establish and maintain police protection. The contract powers of the mayor invade and compromise those specific powers.

(5) The majority view of case law is that a contract contrary to a municipal charter is void, and unenforceable. The courts have ruled that such a contract term simply falls away. The Council did not seek to invalidate the chief’s contract or make any material change in it. The Council acted in good faith in supporting the Charter. When the Council acts in good faith, case law of the U.S. Supreme Court gives local government officials a broad grant of immunity from law suit.

(6) A contract allowing the mayor to dictate policy or influence policy through his own office for public safety is not a democratic method of establishing policy. What was the contract saying when it stated that the chief will report to the mayor? This is an outrage that the Charter is blatantly violated by a small item in a long contract. The legislature established the charter to give local government a democratic basis and the contract term does an end run around the Charter.

(7) A well-established principle of law says that laws that delegate legislative power to an administrative agency require standards to guide the administrative agency. I am not arguing that this principle of law applies, but I am arguing that the reasoning behind the principle applies.

There are no standards in this contract to guide the mayor in establishing policy for public safety, and therefore, without standards, the mayor’s policymaking power is not proper, checked or well-advised. Thus, the contract term falls away. The contract itself is still good, and is not breached. The chief received no detriments or benefits of this “falling away.” He simply reports to a professional town manager who reports to the council and the council hold all accountable.

(8) A principle, which is well-established in our federal constitution and in the Delaware constitution, is that of checks and balances. The contract provides no checks and balances over the policies that might be established by the mayor over public safety. The mayor can potentially make policy as a single individual and is not required tell the Council what the policy is. This is a poor way to run a railroad, much less a town government.

(9) The mayor has said that he has delegated his power over the budget to the town manager. This is an empty argument, because that which can be delegated can be called back. What is to stop the mayor at a future time from writing another statement saying that he is taking back his powers? This was a futile gesture when the mayor saw he was going to lose and tried a stop-gap measure of stopping good government reform. It did not work!

Another important reason for this change of reporting is that public safety departments should not be directed by an elected official who has run for office in a political environment. The mayor is such an official and can potentially politicize the public safety department.

Public safety responsibilities should not be politicized. The underlying premise of the town manager form of government is allowing the administering the day-to-day duties of town government by a professional town manager. If the town manager becomes political — which is usually not the case — but if he does, then the council in public session can check his power. The same cannot be said with the mayor, who may work in secret beyond public scrutiny.

Requiring the police chief to report to the town manager is consistent with recommendations of the ICMA and leading professional associations of local government.

(10) A brief review of survey data in the 57 municipalities in Delaware shows that 37 employ a chief of police and only four municipalities have the police chief report to the mayor. Seventeen of the 37 have the chief report to the mayor and council.

The survey data is complicated by the fact of different types of local governments. But what is clear is that the trend of the last 20 years in Delaware is moving toward having the police chief report to the town manager. Seven municipalities, including Bridgeville, Dewey Beach, Felton, Fenwick Island, Lewes, Millsboro and New Castle in the last 20 years have adopted policies of having its police chief report to the town manager.

I believe that this change is not directed at the chief or the mayor personally, but a change that will endure for the future of our council-manager form of government. This change will fix the corruption and the power of the mayor inherent in the contract and make it conform to the charter.

It is a change for good government and a more democratic government. It will depoliticize the public safety department and look toward open and accountable expenditures of our public safety departments.

All citizens interested in these values should applaud, but I know a small minority will not because these people have been co-opted into the true-believer philosophy of the CAP organization. They see this issue only in the false sense that they see their leader will leave.

They have created this issue themselves. This issue in no way relates directly or indirectly to their claims. They are the ones who do a disservice to our town filling airwaves and newspapers with hate, invective and false accusations. They have not raised any substantive arguments of any merit of why this action should not have taken place, nor replied to any of the substantive arguments above.

These are my reasons for voting as I did.

Perry J. Mitchell, Councilman
Ocean View

Dewey should have thought out new show

I recently watched on TRU-TV the first two episodes of “Surf & Rescue: Dewey Beach” and have to wonder what the Dewey Beach Council was thinking when they approved this.

There is a saying that even bad publicity is better than no publicity at all. If that’s the case, then that is what they got — given that the show made Dewey Beach to be nothing more than a party town full of drunks. I believe the term “drunken horde” was even used in reference to the crowd of people participating in the Bull on the Beach event.

It just seems apparent to me that the people in charge of Dewey Beach didn’t give much thought into the potential negatives of this sort of program.

Charles Cobb
Ocean View

Resident thankful for candidates’ night

Congratulations to Steve Trodden, moderator, and to the Bethany Beach Landowners’ Association, sponsor, for an educative and well-run candidates’ night meeting.

I remain impressed by the process that includes prepared questions, questions submitted by the audience in writing, questions from the floor and the opportunity for each candidate to submit closing remarks.

The evening was a credit to the gracious moderator, the generous sponsor, the field of able candidates, and all those who attended and participated. Ad multos anos.

Virginia Reiss Nee
Bethany Beach

Americans need to reread their history

In the last half-century, Americans, through their actions and remarks, have demonstrated an incredible alienation from, and lack of understanding of, their fundamental documents and the tenets of democracy. Complicating that issue is what appears to be a failure on the part of the schools to inculcate in their students an ability to parse language so as to be able to separate fact from fiction.

As an educator and author concerned with American history, democracy and good government, I find that I am appalled that so many of our so-called “average” citizens — a much maligned term — have confirmed that they are either unconcerned, disconnected, indifferent, confused or ignorant of the freedoms, obligations and other rights inherent in a democratic form of government and, when questioned, unable in their litany of explanations to separate hype from fact.

This is dangerous territory, for our freedoms rest tenuously on such knowledge.

There is no excuse for our carelessness and slovenly thought, and if our educators won’t say it, somebody needs to spell it out so that we can begin to address and ameliorate the problem, although it is doubtful whether such important and significant strides will benefit the majority of us prior to the upcoming elections.

Most assuredly, our lack of capacity in these areas demonstrates a failure at very fundamental levels to not only comprehend but be guided by the very principles by which we live or to even fathom the obligations that democracy imposes upon us. And if we do not understand these guaranteed advantages and freedoms, why would we be impelled to do anything to uphold them?

What our ignorance has effectuated has been the lowering of barriers, thereby allowing middling or unqualified people to rise to power. And, as we have seen, such behavior only accelerates the incidence and frequency of bad decision-making, which to a great extent is self-reinforcing and leads us away from all of the thinking and the philosophical concepts that define us as a nation that is proud, generous, evenhanded and compassionate.

This is the dilemma we face in a society where the fundamental tenets of good government are under serious threat. Today, the White House feels that it is within the concept of executive privilege to reinterpret constitutional law as it sees fit and not have to explain its actions. This is exacerbated by the misuse of language to obfuscate, misdirect and distort the truth.

In the age of communication, it seems that, somewhere along the line, a schism has developed between the government and the people. In effect, America’s citizenry does not seem to comprehend that, in the final analysis, when all else fails, the burdens of democracy fall upon them; that, in effect, we serve as the “court of last resort.”

However, this knowledge seems to fall upon deaf ears.

The fact is that the people’s failure to serve as a brake on the excesses of government over the last eight years and the concurrent failure of the media to perform its duty as the Fourth Estate, combined with our elected officials’ willingness to thumb their collective noses at our most fundamental institutions, has contributed to an atmosphere approaching what might legally be termed as bordering on unilateralism or despotism.

What we have endured over the last eight years are all of what might be expected of a government that has lost its way, a government that no longer exists for the people, raising questions as to whether the compact that exists between the people and its government is still intact.

Corruption, distortion of fact, “smoke and mirrors,” misstatements and downright lies provide convincing evidence that this government is concerned less about democracy and more about imposing a form of despotism, unilateralism and/or corporatism as a template for the future that is predicated on policy that embraces economic imperialism, executive privilege and self-interest, all in direct opposition to the public good. It is almost as if the public good has no place in this government’s view of the future.

The citizenry, as a result, finds itself rudderless in a vast sea of misunderstanding, confusion and misdirection perpetrated by a government that uses words as flexible tools to say one thing one moment, and something else the next; a government that passes legislation that is aimed at its own narrow interests and, oftentimes, sneaks in just below the radar, and reinterprets the laws to suit its own convenience.

Many of us are deeply disturbed by the fact that we have drifted away from the fundamental tenets that have defined government and the law for more than two hundred years. We feel awash in cynicism and dishonest statements and the government’s in-your-face style of governance that shows little or no respect for the citizenry.

Clearly, many of government’s failings can be traced to a willingness to flout the laws of the land, and a predilection for superimposing its own limited and self-serving perspective combined with a deep and ingrained disdain for the Courts and the rule of law as defined by our founding documents.

In short, the public needs to be reappraised of what democratic government represents in this time of misunderstanding and confusion that inveighs against good decision making. Our voting public should be reminded that good government, the way our Founding Fathers envisioned it, was to include inherent “protections” for the individual against the erosion of those freedoms by others or the government itself. This included protections against eavesdropping, the rights of habeas corpus and equal treatment under the law and the belief that the accused was innocent until proven guilty in a court of law, et al.

Today, we find that many of these fundamental rights, and others, have been flouted by a government obsessed with the use of power and control to ostensibly “protect us against terrorists.” In most cases, it would seem that we run a greater danger in losing these inalienable rights than we might possibly suffer under the terrorist threat, raising questions as to the sincerity and motives of the government in question.

It bears restating that our Founding Fathers built in protections so that neither the president nor the executive should rise above the common people in the application of the law. We are a democracy protected by the Bill of Rights and the Constitution. Unfortunately, this president has already attacked the Constitution as “simply a piece of paper.” Nevertheless, this piece of paper and “others” — the Bill of Rights and Declaration of Independence — describe how our government is structured in considerable detail, its responsibilities and the relationship of one branch to another.

These documents also explain the relationship of the government to the people. It provides the basis for the separation of Church and State and the rights and privileges guaranteed under the law; for example, First Amendment rights and the protections of the individual under the law.

Consider habeas corpus; it is a right guaranteed under the law, however, this government had dispensed with it using the excuse of an incipient antiterrorism policy. At the same time, government has invaded our privacy in any number of ways — including snooping at our personal records without the approval of the Courts. Our laws protect us against government eavesdropping or “spying” without the tacit approval of the judiciary and the sanctions of the Courts and only in certain circumstances.

Sadly, this law, like many others, has been set aside by the executive, predicated on the questionable argument the threat posed by terrorism trumps good sense and the rules of law and, most especially, the intent and purpose of the Founding Fathers to protect the citizenry of the land.

Nevertheless, the words etched in our most important documents did not stop the White House from implementing its own form of “spying” without the approval of the Courts, a policy that had only been approved by Congress after it had already been in use for several years flouting the spirit and intention of Constitutional law.

We have also learned that in seeking to find evidence against terrorists, this government has gone mining through the records of “innocent citizens” in the expectation that this mass filtering methods will produce terrorist suspects. This kind of database mining technique happened without the prior approval of the Courts.

And, as if such acts were not bad enough, we now learn that the Justice Department is moving to detain citizens who are not suspect at all, allowing the Attorney General to authorize going through their records and files and denying them access to habeas corpus.

In addition, as we know, we have affixed our signatures to the Geneva Convention where it is accepted under the provisions of International law that it is against the law to conduct torture of American citizens, but we have dispensed with those prohibitions as well. Unfortunately, such tacit protections, too, have been dispensed with by this government in a high-handed and arrogant way that simply uses specious arguments to avoid the law; it has been arbitrary and constitutes, for the most part, “fishing expeditions” into the lives of our citizenry that have not been approved by our elected officials or subjected to the litmus test of law.

It is time that such violations of our freedoms and rights end and the people, if the Congress fails to act, restore our democracy and respect for our fundamental documents that serve as a foundation to our democracy.

If we fail to act on this imperative, it is fair to ask: How will America differ from a totalitarian form of government?

To ignore the protections provided under the Constitution, as this government has done over the last seven years, suggests a careless disregard for the law and has established, per se, a dangerous precedent that can only lead to the further dissolution of the democracy that has shaped this country over more than 200 years and the compact that joins the common man with his government.

Montaigne, the French philosopher, and later Diderot, thought exhaustively about the rights and obligations of those who live under a democracy. It was clear to Diderot, for example, that our form of government, while deserving of unique praise, was also extremely fragile and could be perverted through ignorance or a failure of vigilance before the eyes of the citizenry without anyone being the wiser.

It falls to this writer to suggest that perhaps we need to be reappraised of both our rights and obligations under democracy if it is to survive the next 200 years. It is inevitable that the citizenry understand and respond to the idea that this form of government cannot survive without the concomitant obligation and responsibility of the people to this grand idea that has until now served us so well.

The failure to act now will most assuredly have unintended consequences casting our very survival as a free nation in doubt.

Les Aaron

Atkins thankful for support in primary

I would like to take this opportunity to acknowledge and thank the wonderful volunteers and voters that have help me during this primary election campaign. I also like to thank everyone who voted during the primary election on Sept. 9.

This was a significant milestone, and I would like to take this opportunity to ask for your continued support. I believe that my past constituent service, hard work, name recognition and overall legislative record have shown that I am capable and competent of representing the 41st District, and I am asking for your support in November during the general election.

Thank you for your consideration! God bless our military service personnel and God bless you.

John C. Atkins, Candidate
41st District (Democrat)

Carter takes a legal look at gas station

Your article on the proposed gas station on Route 26 in Ocean View reveals once again the highly questionable state of local politics here on Delmarva. Because an outside developer wants to get its way, another small town may be bullied into allowing a completely inadvisable (and disallowed) use to be permitted within town limits. It would be setting a bad precedent and opening the door to other detrimental commercial property uses.

Ocean View’s council does not have an impressive track record when it comes to intelligent decision-making. Evidence of this includes the police building boondoggle, the unnecessary annexation of Bear Trap, the too-close setback at the Blockbuster strip mall, and the childish behavior displayed by elected members of the council. There seems to be a highly contagious case of big-fish-in-a-small-pond syndrome among those people involved in town government.

So... Enough about the general state of political efficiency in Ocean View. Let’s address this gas station/convenience store matter.

Getting down to basics, a convenience store and a gas station are separate entities. Of course, there are convenience stores that are part of gas stations, and there are gas stations that are part of convenience stores. Having one does not dictate or imply that there has to be the other.

The developer is arguing that a business combining a convenience store and a gas station is allowed by right on the property in question. The flawed logic here is that the developers are combining the two separate enterprises into one for the purpose of forcing their intended use onto the property.

The first recognized convenience store was opened in Texas in 1927 by Southland Ice, which would eventually become the 7-Eleven chain of franchise stores. There was no gas station at this first convenience store, and, as a matter of fact, convenience stores were not widely added to gas stations until the 1970s.

Convenience stores as parts of gas stations only became popular after gas station operators realized that the labor costs associated with full-service customer refueling and onsite auto repair were becoming prohibitive. Combine this with increased interference from the parent oil companies and you can see why gas station operators got rid of their expensive employees and put in racks of Slim Jims, cigarettes and chips alongside reach-in coolers of beer and sodas.

A separate business license to sell food and convenience items is required in all U.S. jurisdictions. Therefore, a convenience store does not inherently include gas pumps and vice-versa. A business that does, by definition, combine these two services is known as a truck stop!

As most of us are aware, the biggest sellers in a convenience store are coffee, beer, sodas, cigarettes, snack foods, prepackaged sandwiches and lottery tickets. Although the developers in this case want us to think that their gas pumps would merely be an addition to their convenience store, in actuality, their convenience store would be an addition to their gas station. Thus, the primary proposed use is for a gas station — a disallowed use under zoning regulations.

This proposed use should not be granted as conditional for a number of reasons. First, as we have just discussed, a combination gas station and convenience store is not allowed by right on that property. Next are the environmental and safety concerns of having possibly 20,000 gallons of gasoline stored in underground tanks on high-water-table land.

To go further, how tacky do we want that stretch of Route 26 to become? Bright lights at night, flashing signs, beer logos and a huge increase in vehicles entering and exiting Route 26 at that point are all contributing factors to destroying the small-town feel and atmosphere that most residents want to maintain.

And, since we mentioned beer, you know that, if this use is approved for the mixed use of convenience store and gas station, the developers will surely get a beer and wine sales license. With drunk-driving being far and away the most popular outdoor sport in lower Sussex County, do we really want to make it easier for people to participate? Will the OVPD have to put on more officers per shift to monitor increased traffic? Where is the “convenience” now for Ocean View residents and taxpayers?

One final thought: Early in the discussions for this property use, I seem to recall the developers making a comment about bringing “cheap gas” to Ocean View area drivers. How do they propose to do this? How would the town council who granted the application (or who caved in during any legal action) follow up on and enforce such a claim? Will the developers sign an agreement that their gasoline will always be at least 3 cents less than any other gas station within 5 miles?

You know my opinion on the matter. Now it’s time to form your own thoughts and express your opinions to local government. Hopefully, this letter will provoke some thought and dialog among residents and council members. Thanks for your time.

Chris Carter
Bethany Beach

McLaughlin is not the problem in Ocean View

I would like to offer a couple of observations on the shenanigans in Ocean View.

It seems both silly and obvious that some of the towns supposedly intelligent and mature leaders are willfully and deliberately attempting to destroy the integrity of both the Public Safety Building and the town’s outstanding police chief.

There is the absurd proposal to modify the Public Safety Building, under the guise of obtaining needed office space. I will agree that additional office space is probably needed to accommodate expansion, due to growth, of other town departments, but it is ludicrous for part-time council members to need any more than a cubbyhole for an office.

An estimate of, I believe, $170,000 has been established to complete the proposed modifications and destruction of the Public Safety Building. If implemented, the security integrity of the building will be sacrificed. This makes no sense if the object is simply to obtain additional office space, which can more readily be added to other existing town buildings using the same $170,000 proposed for the destruction of the current jewel of the town’s the Public Safety Building.

This building, which some misguided taxpayers and petty town officials jealously refer to as a “Taj Mahal,” is the first government facility built in our area with an eye to future growth. It would be asinine to tear it apart at this time for additional office space! It should not be destroyed as proposed!

I have one other thing to offer. Why has a lawyer been hired to review Chief McLaughlin’s contract? There seems to be a mystery concerning this, because neither the carpetbagger town manager, Conway Gregory, nor the town council can answer this question.

This whole thing stinks! If there is a contract that needs review, it is that of the town manager. Oh, sorry! There is some doubt concerning the validity of his contract. But if it ever does get reviewed, his car has to go. He was good at crunching numbers to justify eliminating the police car take-home policy. Perhaps he can do the same magic with his vehicle.

The bottom line here is that Chief McLaughlin’s performance in Ocean View has been flawless! His concern and love for the town is unquestionable! His vision and efforts were indeed instrumental in the building of the Public Safety Building. It is almost sinful that petty people are trying to destroy his success. Wake up, Ocean View, before it is too late!

Thomas M. Keeley III
Ocean View