Selectman Bill Marcussen said today that at Town Meeting in March 2017, when voters were discussing Warrant Article 9, there “were opinions voiced at that point that are demonstrably at odds with reality.”
Voters discussed Article 9 for 20 minutes and amended it twice before taking a final vote on it, making it the most discussed article at Town Meeting. But Bill said today that “the discussion didn’t go on to a further conclusion.”
“I believe that the vote as it was taken was done without full understanding on part of some of the voters,” he said. However, before the final vote on the article, Town Meeting’s Moderator, Dan Barnard, asked the voters: “Does everybody understand where we’re at? We’re voting now on Article Number 9. It has been amended to limit the selectmen’s prerogatives to sealed bid, and is constructed in such a way that the authority will expire at the end of one year.”
Bill also claimed that “it was a close vote, as you know.”
A close vote would not make the vote any less valid. At Town Meeting articles pass with a 50% + 1 vote, unless the article involves taking on debt that future Town Meetings would be obligated to fund. In that case a 2/3 majority is required.
However, none of the votes on Article 9 were close.
The first amendment to Article 9, which I put forward and that removed the language “indefinitely, until rescinded” from the article, had a recorded vote of 67 yes to 57 no (roughly 55% to 45%). The second amendment to Article 9, which was put forward by Steve Snow and limited the selectmen to selling by sealed bids, had even more overwhelming support and the Moderator, Dan, did not call for a recorded vote but instead declared that amendment passed by show of hands.
The final vote to pass Article 9 as amended was not close, either. Dan again did not call for a recorded vote but instead declared the article as amended to be passed by a show of hands, indicating that a clear majority favored it. All three current selectmen are shown on video voting for the amended article.
Reversing his previous statements, Selectman Chip Albee acknowledged today that Warrant Article 9 had been amended to authorize the selectmen only to sell tax-deed properties by sealed bids, and not by public auction or any other means. However, Chip maintained that there’s nothing in the law, RSA 80:80, that allowed Town Meeting to restrict the selectmen’s options in regards to selling property.
For reference, here is the text of the RSA:
80:80 Transfer of Tax Lien. –
I. No transfer of any tax lien upon real estate acquired by a town or city as a result of the execution of the real estate tax lien by the tax collector for nonpayment of taxes thereon shall be made to any person by the municipality during the 2-year period allowed for redemption, nor shall title to any real estate taken by a town or city in default of redemption be conveyed to any person, unless the town, by majority vote at the annual meeting, or city council by vote, shall authorize the selectmen or the mayor to transfer such lien or to convey such property by deed.
II. If the selectmen or mayor are so authorized to convey such property by deed, either a public auction shall be held, or the property may be sold by advertised sealed bids. The selectmen or mayor shall have the power to establish a minimum amount for which the property is to be sold and the terms and conditions of the sale.
II-a. If the selectmen or mayor are authorized to transfer such liens during the 2-year redemption period, either a public auction shall be held, or the liens may be sold by advertised sealed bids. The selectmen or mayor may establish minimum bids, and may set the terms and conditions of the sale. Such liens may be sold singly or in combination, but no fractional interest in any lien shall be sold. Such transfer shall not affect the right of the owner or others with a legal interest in the land to redeem the tax lien pursuant to RSA 80:69, or make partial payments in redemption pursuant to RSA 80:71, but the transferee shall become the lienholder for purposes of RSA 80:72 and 80:76.
III. The selectmen may, by a specific article in the town warrant, or the mayor, by ordinance, may be authorized to dispose of a lien or tax deeded property in a manner than otherwise provided in this section, as justice may require.
IV. Such authority to transfer or to sell shall continue in effect for one year from the date of the town meeting or action by the city or town council provided, however, that the authority to transfer tax liens, or to sell real estate acquired in default of redemption, or to vary the manner of such sale or transfer as justice may require, may be granted for an indefinite period, in which case the warrant article or vote granting such authority shall use the words “indefinitely, until rescinded” or similar language.
V. Towns and cities may retain and hold for public uses real property the title to which has been acquired by them by tax collector’s deed, upon vote of the town meeting or city council approving the same.
VI. For purposes of this section, the authority to dispose of the property “as justice may require” shall include the power of the selectmen or mayor to convey the property to a former owner, or to a third party for benefit of a former owner, upon such reasonable terms as may be agreed to in writing, including the authority of the municipality to retain a mortgage interest in the property, or to reimpose its tax lien, contingent upon an agreed payment schedule, which need not necessarily reflect any prior redemption amount. Any such agreement shall be recorded in the registry of deeds. This paragraph shall not be construed to obligate any municipality to make any such conveyance or agreement.
Source. 1987, 322:1. 1992, 173:3, 4. 1993, 176:10. 1997, 266:4, eff. Jan. 1, 1998.
Whether or not 80:80 allows Town Meeting to place restrictions on the manner of sale of tax-deeded properties is a completely different question from whether Town Meeting amended Article 9 to authorize the selectmen to sell the tax-deeded properties by sealed bids only. I am glad that Chip has moved on and is no longer saying that the amendment did not happen.
Through Sager, the selectmen are averring that they should not have to pay our “reasonable attorney’s fees,” should they lose, because their suit is not a Right to Know lawsuit, and “thus, there is no ‘lawsuit … necessary in order to make the information available’ to the defendants.”
The selectmen also claim in their Objection that it “isn’t clear if or when a complaint would be filed by either of these defendants.” They make this claim now even though just two months ago they justified their lawsuit against us by claiming in their original Complaint that “it is also apparent that the Town would be sued by one or both of defendants if the Town continued to refuse to provide redacted emails for no charge.”
Now they claim, of us, “if they were planning to take a proactive approach, they should have done so before the Town filed this action.” Of course, the reason that we have not sued them is that they sued us.
Furthermore, no legal action would have been necessary had they simply complied with RSA 91-A:4(IV): “Each public body or agency shall, upon request for any governmental record reasonably described, make available for inspection and copying any such governmental record within its files when such records are immediately available for such release. … No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.”
On January 23, four days before the hearing, we filed an Answer to the selectmen’s Complaint. We could have dropped the Answer in Sager’s lap in court. Instead, we were courteous and provided it to him in advance. He then filed his own Motion to Continue, which we assented to through our attorney. The hearing is now scheduled for February 22, at 1PM.
After filing his Motion to Continue, however, Sager then took to Facebook to claim that our Answer was late because it was “required to be filed on December 21.” This is simply false.
However, when I asked Sager to correct his obviously wrong claim, he instead doubled down, writing “the document entitled ‘Summons – Hearing Scheduled’ served on both Mr. Ledoux and Mr. McWhirter states, in pertinent part, ‘The Court ORDERS that ON OR BEFORE: … December 21, 2016 …Maxim Blowen-Ledoux, A.A L.; Robert McWhirter shall file an Appearance and Answer or other response with this Court. A copy of the Appearance and Answer or other response must be sent to the party listed below and any other party who has filed an Appearance in this matter.’ It’s part of the public record. I am not making this up.”
Sager might not be making that up, but he is ignoring the clear meaning of “Appearance and Answer or other response.”
It strains credulity to think that the court would grant a Motion to Continue, and reschedule the hearing, but require the Answer to be filed by the original court date. What would be the point of postponing the trial, in that event?
Who knows. Sager wrote, “The deadline for filing an Answer has always been December 21. It was never modified by the court. I didn’t push the issue out of courtesy to your attorney, knowing he needed time to get up to speed.” He then added that he was “regretting that decision now”
Sager even alludes to his theory in the introduction to the Objection: “Rather than object to both the Answer and the Motion as being non-compliant with superior court rules in various aspects, the Town seeks instead to respond to the imbedded Motion on its merits.” (Emphasis added.) However, since he has no actual proof that our Answer was late or in violation of superior court rules, he offers none.
Later in the Objection, Sager misinterprets Paragraph 72 in our Answer. He seems to be under the impression that we were claiming the Superior Court found in Sawyer v. Sundquist that the selectmen “knew or should have known” that they were breaking the law.
That is not what we wrote, and a clear reading of Paragraph 72 makes that obvious. In fact, our attorney cited the ATV Watch case at the end of the paragraph, not Sawyer. The point we were making, apparently lost on Sager, is that since the Superior Court ruled the selectmen had violated RSA 91-A multiple times in Sawyer, the selectmen “should have known” that they were violating the law when they attempted to illegally charge me a fee to inspect a governmental record.
Sawyer was less than a year before the selectmen attempted to charge me, and two of the current selectmen — Carolyn Sundquist and Lloyd Wood, were on the board when Sawyer was decided against them.
Given Sager’s muddied view of RSA 91-A and superior court rules, it’s no wonder that the selectmen, with his advice, embarked on such an egregious abuse of power as to sue citizens in an attempt to avoid their obligation under the state constitution and law.
It is my opinion as a tax payer in Tuftonboro that our town is not served well by Sager’s legal advice and that we would do well as a town to fire him. Of course, the selectmen are the ones who decide who to hire as their attorney (even though his $175 an hour fee is paid with tax payer money).