Selectmen Cite Attorney-Client Confidentiality

Citing attorney-client confidentiality, the Tuftonboro selectmen today refused to make available any communication they have received from attorney Rick Sager in their impromptu May 13 meeting in regards to the maintenance of town cemeteries. According to the meeting draft minutes, Sager advised them to “divorce themselves from the Cemetery Trustees in regards to clerical type responsibilities.”

Although the meeting was “properly posted,” according to the selectmen’s administrative secretary, Karen Koch, the meeting agenda was not sent out via email, as is the customary (though not required) practice. As a result, the only person present at the meeting other than Koch and the selectmen was Elissa Paquette of the Granite State News. Joe Kowalski, an independent contractor who ordinarily video tapes the selectmen’s meetings, was also not informed of the meeting and therefore was not present and there is no video record of the meeting. To be clear: the selectmen are not required to notify Kowalski, and there is no requirement that the meetings be recorded.

It appears the selectmen met the letter of the law in quietly posting a notice to the town web site on Wednesday, May 11. However, they broke with their ordinary habit of sending out a notice by email. (You can subscribe to receive email notifications for both agendas and minutes.) It is not surprising that as a result the residents who normally attend the selectmen meetings were not there.

Despite Advice from Attorney, Selectmen Continue to Violate State Law?

On Friday, May 13, in a hastily scheduled meeting not on the regular calendar, the selectmen reviewed “advice from Attorney Rick Sager that the Selectmen divorce themselves from the Cemetery Trustees in regards to clerical type responsibilities.” Yet during the same meeting, “it was agreed by the Board of Selectmen to ask Mr. Hunter to mow the cemetery at the Town House in time for Memorial Day before completely removing himself from cemetery maintenance.”

Stay tuned for more information on the advice from Rick Sager. I will be requesting a copy of it.

Tuftonboro Town Reports 1990 – 2015

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Separation of Powers at the Local Level

On April 25, the Tuftonboro selectmen voted to pay Cory Hunter $810 for work he had done on the town cemeteries, even though Chairman of the Trustees of the Cemetery Trust Funds Sue Weeks stated that the trustees were scheduled to meet the following week, May 3, to address the issue. Carolyn Sundquist, chairman of the selectmen, has stated on multiple occasions that the town has a contract with Mr. Hunter, and the Granite State News reported last week that Mr. Hunter’s contract is “ongoing.”

Last Friday I submitted a Right to Know request to the selectmen to review any contract between the town and Mr. Hunter that existed between 2010 and now.

There was no contract in the documents that were provided to me by the selectmen.

There was a document that is not signed by anyone from the town, or even by Mr. Hunter. Even if it had been signed by both parties, this document has an expiration date of April 15, 2011.

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Corey Hunter paperwork

I assume that when Selectman Sundquist stated on April 25 that there was a contract, she was simply mistaken. In the May 2nd meeting, when she stated that she had the contract in front of her and that it was current, I assume she just hadn’t read it yet.
But that’s not my main concern.

From what I understand, and of course I may be wrong, the selectmen do not have the authority to make payments for the maintenance of the cemeteries.

I believe all the selectmen were acting in good faith. Furthermore, I have never met Mr. Hunter, and I emphatically am not making any judgement about him as an individual or a businessman.

Nevertheless, I’m worried that when the selectmen voted to pay Mr. Hunter for the work on the cemetery, they unintentionally broke the law.

The selectmen have broad authority to “manage the prudential affairs of the town,” per RSA 41:8. However, the New Hampshire Supreme Court has ruled that “the phrase is not intended to confer unfettered power” and that “towns only have such powers as are expressly granted to them by the legislature.” Both those quotations are from Girard v. Allentown (1981).

RSA 41:11-A:I states: “The selectmen shall have authority to manage all real property owned by the town and to regulate its use, unless such management and regulation is delegated to other public officers by vote of the town, or is governed by other statutes.”

289:2 states unequivocally: “The operation and maintenance of all cemeteries owned and operated by the municipality shall be in the charge of the cemetery trustees.” Further, 289:7:I-C states that the trustees shall “expend all moneys raised and appropriated by the municipality for cemetery purposes.”

Only Town Meeting can “delegate the duties and responsibilities of the cemetery trustees to the board of selectmen,” according to RSA 289:6.

$810 is not an exorbitant amount of money for the town, and, again, I do believe the selectmen were acting in good faith. But we have different boards for a reason. If one board can overrule another board, what’s the point of having multiple boards? The separation of powers at the local level into different boards is a deliberate act by the legislature given that separation of power is explicitly required by Article 37 of the New Hampshire Bill of Rights.

At their May 9th meeting, I asked the selectmen to please examine the documents and the RSAs, and at the next meeting, to please state for the record whether there is a current contract with Mr. Hunter and whether the selectmen have the authority to act as trustees for the cemeteries. Selectman Sundquist acknowledged that there is no contract, but averred that there is an ongoing agreement between the town and Mr. Hunter. That does not address the issue of whether the selectmen have the authority to overrule another board. I await the selectmen’s response. Because Selectman Bill Marcussen will be out of town for the next scheduled meeting of the board of selectmen, I have asked to be placed on the agenda for their June 6th meeting

The 2016 Budget

The two letters to the editor of the Granite State News written recently by Tuftonboro budget committee member Tyler Phillips are illuminating. The proposed 2016 budget is 9.2% (that is, $297,141) larger than the 2015 actual spending. Of that increase, 74% (or $219,884) is for increased salaries and benefits, which Philips says represents a 15% increase over 2015 for that category. I understand that the 15% increase is spread out among the town employees, and that each employee is not receiving a 15% increase individually. However, a 15% increase in spending on any category in the budget would be a lot, so I disagree with Phillips’s colleague on the budget committee, Helen Hartshorn, who wrote on February 25th in this space that the budget is “not extravagant.”

I do think that a 9.2% overall increase in spending, and 15% increase for employee compensation, is extravagant. That doesn’t mean I think our town employees shouldn’t get raises — if they deserve raises and if we have the resources, that is. And all of us who are property-tax payers here in Tuftonboro should keep this in mind: These are our employees. They work for us. We are their employers. So we have a responsibility to understand the numbers. We can’t approve a 15% increase ($219,884 per year) in spending on employee salaries without knowing what we’re paying our employees in the first place.

Phillips tells us that Hartshorn has made some “terrific” graphs showing the difference in spending year over year, but that we won’t get to look at them until Town Meeting. How can we make an informed decision about the budget based on last-minute glances at out-of-context numbers on a graph? That is not the way to make a decision.

Public-employee compensation is public information as established in New Hampshire law (RSA-91) and upheld by the Supreme Court of New Hampshire (Mans v. Lebanon School Board, 112 N.H. 160, 164 (1972)). On Monday I went to the Town Office and obtained the 2016 proposed employee compensation information. You may view it for yourself here:https://goo.gl/H427UF. You can also get the town report from the Town Office, which details current spending on town employee compensation as well as the proposed spending increases.

I have written previously of my admiration for Clay Gallagher’s stewardship of the transfer station. I continue to think he does a great job. We paid him $48,631.14 in base salary last year, and the 2016 budget proposes raises his base salary to $51,568.00. Under the proposed budget, total spending on compensation for Gallagher would be $67,451 (including health costs and employer taxes). I don’t think that’s extravagant, in and of itself. If the taxpayers think the employees truly do deserve, collectively, $219,884 in raises, then let’s cut $219,884 from somewhere else in the budget. For instance, why are they adding $3,000 for “Blue Loon Bus Service”? Do we need to start sending the American Red Cross $1,093? Why do the Selectmen want to appropriate $45,000, and the Budget Committee want to appropriate $35,000 for Direct Assistance (item 4442) when we spent just $4,890.29 on that item in 2015? We all want to be compassionate towards people who are in need, but why the huge increase? It’s easy to be compassionate with other people’s money. But as Margaret Thatcher said, eventually you run out of other people’s money. We can all make individual contributions to the Red Cross if we want. We don’t have to spend each other’s money.

I will be voting against the budget. I hope you will join me. Let’s send the budget back to the selectmen, as Phillips recommends, so that they can trim it down.