Author Max LedouxPosted on
The library trustees met this morning at 8AM for a “work session.” I had not seen the meeting posted over the weekend so I did not go.
What did the trustees decide to do about the library article debacle, which surely was the topic of their meeting? I hope they will let us know soon. I will update this post with new information, if I get it.
If you know anything, please leave a comment.
Update from Mark Howard, in a comment below:
Max, I heard about the meeting but did not attend. According to an email I received from Christie Sarles…
“The Trustees voted unanimously this morning to table the addition/renovation project for this Town Meeting.”
Christie, for anyone who doesn’t know, is the librarian. Mark is the chairman of the Zoning Board of Adjustment, and involved in various other ways in town, such as the conservation commission and the Tuftonboro Association.
Update from Paul Matlock, library trustee:
The selectmen are saying they will call a special Town Meeting in April to “ratify” the vote on the library addition at Town Meeting. This would not be a legal option. The relevant language below is clear.
Please read the following statute:
31:5-b Legalization of Meetings. –
I. In the past, irregularities and procedural defects in actions of municipal legislative bodies have been cured by actions of the general court. The procedure in this section is an alternative approach which enables municipalities to effect legalization by local action.
II. Whenever the legislative body of a municipality has voted by the requisite majority, by written ballot or in any other manner legally authorized, to take any legal actions and the vote is subsequently discovered to be procedurally defective, such defects may be cured and legalized by a vote at a special meeting called for the purpose of ratifying the procedurally defective action. Procedurally defective actions shall mean minor procedural irregularities such as failure to comply with statutory requirements regarding time or place of notice, vote, hearing, or wording, or with any procedural act not contrary to the spirit or intent of the law. The ratification of the procedurally defective action shall be subject to the following requirements:
(a) The municipality may, on the authority of the governing body, call a special town meeting for the exclusive purpose of curing such defect.
(b) The special town meeting called for that purpose may not take place less than 21 calendar days after the original vote.
(c) Not less than 7 calendar days prior to the special town meeting, not counting the day of the special town meeting, the governing body shall conduct a public hearing at which the reasons for the special town meeting shall be explained.
(d) The municipality shall comply with all statutory notice and procedural requirements for holding special town meetings.
(e) The necessary majority required to cure the defects shall be the same as the majority as required for passage of the original article.
III. When any procedural defect has been cured under this section, actions of the voters shall be valid as if all statutorily required proceedings had been complied with.
Obviously, the “defect” in the library-addition article — the selectmen failed to hold a public hearing — has been discovered not subsequently but prior to the vote. So, that’s that. The selectmen cannot use 31:5-b to “ratify” the defective vote that they know now, before Town Meeting, to be defective.
But for the sake of argument, let’s pretend that the “defect” had been discovered after the vote. It is not a “minor procedural irregularity” to not have a public hearing. A minor procedural irregularity would be to post the notice 6 days before the hearing instead of 7, for instance.
Any way you look at it, the selectmen have failed the library crowd. The library-addition article, with the roughly $1 million loan, is not happening this year, because of the selectmen’s failure to hold a public hearing on the loan.
I would hope that the library crowd remembers this significant mistake when voting on Tuesday for the position of selectman.
Skip Hurt, who was going to vote for the library addition, has said that he will be voting for Bob McWhirter even though Skip and Bob disagree about the library addition. Skip wrote on the Tuftonboro Free Speech Forum, “I’m not afraid to have someone with an opposing view from mine if they are competent. In fact I think the town will be better off.”
At this morning’s library open house, I proposed a compromise on the library. I hope that the library crowd will see the merits of compromise.
Continue reading “A Compromise on the Library?”
We’re in a pickle here in town because the Selectmen failed to hold a statutorily required public hearing on the $1 million bond/note (i.e., loan) that is needed for the library renovation project.
If, on March 14 at Town Meeting, the Selectmen and Town Moderator hold a vote on the library-addition article, that vote will have no legal bearing. It cannot, because there has been no prior public hearing. Without a prior, public hearing on the bond — WHICH IS REQUIRED BY LAW — the vote on the bond is not actionable.
The selectmen want to hold the public hearing on the loan after Town Meeting, even though the law requires the hearing to be held “at least 15 days, but not more than 60 days prior” to Town Meeting. Then they want to convene a special Town Meeting in April to vote — for real this time — on the library-addition article.
What the Selectmen didn’t say during this afternoon’s meeting is that a special, second Town Meeting cannot appropriate (i.e., decide to spend) any money unless the total number of ballots cast at the special Town Meeting is at least 1/2 the number of registered voters at the most recent, previous annual election. Perhaps the selectmen didn’t mention this because they don’t know about it.
Here is the relevant statute (emphasis added):
RSA 31:5 At Special Meetings. –
I. (a) No money shall be raised or appropriated or shall any appropriation previously made be reduced or rescinded at any special town meeting except by vote by ballot, nor unless the ballots cast at such meeting shall be equal in number to at least 1/2 of the number of legal voters borne on the checklist of the town entitled to vote at the annual or biennial election next preceding such special meeting; and such checklist, corrected according to law, shall be used at any meeting upon the request of 10 legal voters of the town. This section shall not apply to money to be raised for the public defense or any military purpose in time of war.
The phrase, “election next preceding such special meeting” is a little confusing at first. Does it mean “the next” election or the “preceding” election? What it means is the most recent — the closest — election that preceded the special election.
There were 1,973 registered voters at last year’s town election, according to the supervisors of the checklist. For the sake of argument, let us say that the same number of voters are on the checklist (i.e., voter roll) this year.
In order to pass the library-addition article at a special Town Meeting, at least 987 ballots would have to be cast.
Note that the requirement is 1/2 ballots cast, not voters in attendance.
I can tell you right now that I would attend such a special Town Meeting, but I would not cast a ballot, and I would implore anyone else in attendance who opposed the the library addition to also not cast a ballot.
So, practically speaking, if all of the Nay voters withheld their ballots, then 987 votes would have to be cast in favor in order for the article to pass.
It’s quite obvious why a special Town Meeting cannot legally raise or appropriate amounts of money (or reduce or rescind already appropriated money) unless the total ballots cast are at least equal to 1/2 the number of registered voters.
Absent that requirement, a very small number of voters could show up at the special Town Meeting and completely subvert the will of the regular Town Meeting. For instance, if 3o people showed up; it would take only 21 of them to reverse what 350 voters had decided the month before at the regular Town Meeting.
At the regular Town Meeting in 2015, the last time there was a warrant article for a new, $2.3 million library, there were 536 total ballots cast on the library article.¹
It is not realistic to believe that nearly a thousand ballots — almost twice as many as in 2015 — would be cast at a special Town Meeting.
- For that warrant article, there was a public bond/note hearing prior to Town Meeting, as required by law, on February 9, 2015.
At a packed emergency meeting with the Town Moderator, Dan Barnard, the Selectmen (Lloyd Wood, Bill Marcussen, and Chip Albee) declared their intention to plow forward on the library-addition warrant article even though they failed to hold a statutorily required public hearing on the library bond before Town Meeting. Because they failed to hold this hearing, the vote on the library-warrant article will have no legal effect and will not empower the selectmen to take out the roughly $1 million loan that will be required to complete the project.
If the library-addition article receives a vote of more than 2/3 of those present at Town Meeting, the Selectmen intend to call a second, so-called “special” Town Meeting in April to “ratify” the vote taken at the first Town Meeting. At the second Town Meeting, the voters could vote to “ratify,” or they could vote “no” and decline to ratify.
In the interim, the selectmen will hold a public hearing on the the issue of the roughly $1 million loan — this is the hearing that, by law, they should have held at least 15 days before the March 14th Town Meeting.
00:00 Call to Order / Public comment
Max Ledoux: Will you be discussing the bond hearing?
12:00 Gordon: We have some problems with the warrant article. The selectmen did not have a special bond hearing and the order of the articles on the warrant is wrong.
“We have some problems,” Chairman Gordon Hunt told his fellow library trustees this morning. “The selectmen did not hold a special public hearing for the warrant article.”
The library-addition warrant article is invalid and will not be legally binding if voted on at Town Meeting because the selectmen have failed to hold a public bond hearing as required by statute.
In response to my post, Approximately $142,000 Missing From Library Capital Donations Fund, Gordon Hunt, chairman of the library trustees, wrote, in a comment on Facebook:
The fund raising efforts for the Library expansion were modeled on Wolfeboro’s Town Hall renovation. Over $736,000.00 was pledged in advance of the vote for that project. Every penny pledged was redeemed in a timely manner with NO DEFAULTS. I should think those people who have stepped up in the same manner for Tuftonboro’s Library will act in the same manner. I feel you are demeaning these folks with a veiled insinuating, [sic] that they will not honor their commitment.
Note that Gordon does not dispute that the $142,000.00 in pledged money is not in the Library Capital Donations Fund.
His reference to “every penny pledged” to the Wolfeboro Town Hall renovation being “redeemed in a timely manner with NO DEFAULTS” is irrelevant. Whether or not anyone reneged on their pledge in Wolfeboro has no bearing on the outcome here in Tuftonboro. Something that happened in a different town on a different project three or four years ago is not useful for predicting what might happen here in Tuftonboro in the coming year or two.
Nevertheless, let’s take a look at the Wolfeboro Town Hall Renovation warrant article from 2014 (emphasis in original):
ARTICLE 7: Reduced-Scope Renovations of Wolfeboro Town Hall
To see whether the Town will vote to raise and appropriate the sum of Four Million dollars ($4,000,000) to be funded as follows: bond issue not to exceed Three Million Eight Hundred Eighty-Eight Thousand Six Hundred dollars ($3,888,600) (to be reduced by pledged donations currently estimated at Seven Hundred Fifty Thousand dollars [$750,000] generated by The Friends of Wolfeboro Town Hall, Inc.), and transfer the balance from the Town Office Facility Capital Reserve Fund (currently estimated at $111,440); for the purpose of renovating the Wolfeboro Town Hall building, to include both the exterior and interior of the building to make it completely handicapped accessible and both building and fire code compliant, but excluding the parking lot and landscaping improvements, replacement windows, clock faces, and other improvements previously funded and completed. This also includes the costs for the architect’s services, construction manager services, and contingencies. Further, to authorize the issuance of not more than three million eight hundred eighty-eight thousand six hundred dollars ($3,888,600) of bonds or notes for this purpose in accordance with RSA Chapter 33, Municipal Finance Act, such sum to be reduced by any federal, state, or private funds made available therefor, (including the aforementioned pledged donations), and to authorize the Board of Selectmen to issue and negotiate such bonds or notes and to determine the rate of interest, maturity and other terms for this purpose, and further to raise and appropriate the sum of Eleven Thousand Three Hundred dollars ($11,300) for the payment of interest on any notes issued in anticipation of such bonds that is payable in 2014; and further to authorize the Selectmen to transfer the balance of the Capital Reserve Fund for Town Office Facility, which currently has a balance of One Hundred Eleven Thousand Four Hundred Forty dollars ($111,440), for this purpose and to accept the gift of pledged donations currently estimated at $750,000 generated by The Friends of the Wolfeboro Town Hall, Inc., which will be used to offset the cost of the project and reduce the amount needing to be bonded.
Estimated Tax Rate Impact: 2014-$0.006; 2015-$0.150 (Recommended by Board of Selectmen by a vote of 3-2) (Recommended by Budget Committee by a vote of 7-2) (3/5 vote is required)
The Wolfeboro Town Hall warrant article from 2014 is significantly different than the warrant article for the library addition this year in Tuftonboro.
The Wolfeboro Town Hall article took out a larger loan (in proportion to the cost of the project) that would later be “reduced by any federal, state, or private funds made available” afterward.
The Tuftonboro Library-Addition article treats the pledged money as real money already in hand, and therefore seeks a smaller loan (in proportion to the cost of the project).
The Tuftonboro model is flawed. Pledged money, no matter the intentions of the good people making the pledges, is not real money. Real money has already been donated and is currently in the Library Capital Donations Fund.
The library-addition warrant article that will be presented at Town Meeting next week would “authorize the withdrawal of Four Hundred Sixteen Thousand Dollars ($416,000.00) from the existing Library Capital Reserve Fund and Four Hundred Ten Thousand Dollars ($410,000.00) from the Library Capital Donations Fund.”
However, Library Trustee Gordon Hunt admitted at the budget committee’s public hearing on February 13 that the Library Capital Donations Fund does not hold $410,000, but instead is short of that by approximately $142,000.
Chris Sawyer: The amount of money that the library’s [contributing], from their donation fund, is that money actually in the donation fund right now?
Gordon Hunt: No. Not all of it. Approximately, at this time, about $140,000 in pledges — Sorry, Christie?
Christie Sarles, Librarian: Just got another pledge for $2,000 this afternoon.
Chris Sawyer: And how do you know those pledges are going to actually come to fruition?
Christie Sarles: Signed pledges are contracts. Signed pledges are legal contracts.
Chris Sawyer: They’re not tendered for a bank. You can’t take it to a bank and get money for it.
Gordon Hunt: Well, let’s put it this way — when the town of Wolfeboro did their town hall, it had pledges of considerably larger amounts than these. They had 100% participation in the pledges. I think it’s called an “act of faith.” Someone says they’re going to do something, they generally do it. And that’s what we’re based upon it.
Chris Sawyer: And that’s fine, it’s just, if someone didn’t know that that money is in the form of pledges, maybe that should be spelled out to the public.
Gordon Hunt: We spelled it out any number of times. We spell it out at our public meetings, we will be spelling it out at the Town Meeting, as well.
Chris Sawyer: Oh, you will? Oh, good.
Gordon Hunt: And keep in mind, too, that $410,000 [in the capital donations fund], that we’re talking about right now, is a moving target. Because our fundraising is ongoing. We hope to have considerably more money by then, being Town Meeting.
Contrary to what Christie said, pledges are not signed contracts. They’re promises, nothing more. That does not mean that every single pledge will not be fulfilled. I’m sure they all will be fulfilled.
However, for budgetary purposes, we cannot treat pledges as money in hand.
There is a warrant article being presented to the Wolfeboro Town Meeting to renovate and expand the Wolfeboro Public Library. That warrant article is worded significantly differently then the warrant article here in Tuftonboro.
Here is the warrant article (emphasis in original) in Wolfeboro:
Article 9: Library Renovation and Expansion Project
To see if the Town will vote to raise and appropriate the sum of Five Million dollars ($5,000,000) to be funded as follows: bond issue not to exceed Four Million Eight Hundred Fifty Five Thousand dollars ($4,855,000), said bond amount to be reduced by donations and pledged donations currently estimated at One Million Three Hundred Thousand dollars ($1,300,000) generated by the Wolfeboro Public Library Foundation, and to authorize the Selectmen to transfer the balance of the Library Reserve Fund currently estimated at Twenty Two Thousand dollars ($22,000) and the balance from the Wolfeboro Public Library’s Building Fund currently estimated at One Hundred Twenty Three Thousand dollars ($123,000), for the purpose of renovating and expanding the Wolfeboro Public Library building, to include both the interior and exterior of the building, parking lot and other site improvement, and to include the cost for architect services, engineering services, construction manager services and contingencies. Further, to authorize the issuance of not more than Four Million Eight Hundred Fifty Five Thousand dollars ($4,885,000) of bonds or notes for this purpose in accordance with the Municipal Finance Act, RSA Chapter 33, such sum to be reduced by any federal, state, or private funds made available therefor (including the aforementioned donations and pledged donations), and to authorize the Board of Selectmen to negotiate and issue such bonds or notes and to determine the rate of interest, maturity and other terms for this purpose. Further to authorize the Selectmen to accept the gift of donations and pledged donations currently estimated at One Million Three Hundred Thousand dollars ($1,300,000) generated by the Wolfeboro Public Library Foundation to be used to offset the costs of the project and to reduce the amount needed to be bonded.
Estimated Tax Rate Impact: 2018-$0.00, 2019-$0.005, 2020-$0.160 per $1,000 of Assessed Valuation
(Recommended by the Board of Selectmen by a vote of 5-0)
(Recommended by the Budget Committee by a vote of 5-0)
3/5 majority vote required
As you can see the Wolfeboro library article is much more specific than the Tuftonboro library article:
Article 04: To see if the Town will vote to raise and appropriate the sum of One Million, Nine Hundred Twenty Thousand Dollars ($1,920,000.00) to renovate and expand the current Library and to authorize the issuance of not more than One Million Ninety Four Thousand Dollars ($1,094,000.00) of bonds or notes in accordance with the provisions of the Municipal Finance Act (RSA Chapter 33); to authorize the selectmen to issue and negotiate such bonds and notes and to determine the rate of interest thereon and the maturity and other terms thereof. Furthermore, to authorize the withdrawal of Four Hundred Sixteen Thousand Dollars ($416,000.00) from the existing Library Capital Reserve Fund and Four Hundred Ten Thousand Dollars ($410,000.00) from the Library Capital Donations Fund. The first payment on the bond or note will not be made until year 2019.
(Two-Thirds (2/3) ballot vote required per RSA 33:8-a)
(Recommended by the Board of Selectmen 2-0-1 and the Budget Committee 6-1)
The Library Capital Donations Fund does not have $410,000 in it, by Gordon’s own admission. Therefore the warrant article is misleading.
The article should be phrased differently, such as:
To see if the Town will vote to raise and appropriate the sum of One Million, Nine Hundred Twenty Thousand Dollars ($1,920,000.00) to renovate and expand the current Library and to authorize the issuance of not more than One Million Two Hundred Thirty Six Thousand Dollars ($1,236,000) of bonds or notes in accordance with the provisions of the Municipal Finance Act (RSA Chapter 33), said bond or note amount to be reduced by donations and pledged donations currently estimated at One Hundred Forty Two Thousand dollars ($142,000.00); to authorize the selectmen to issue and negotiate such bonds and notes and to determine the rate of interest thereon and the maturity and other terms thereof. Furthermore, to authorize the withdrawal of Four Hundred Sixteen Thousand Dollars ($416,000.00) from the existing Library Capital Reserve Fund and Two Hundred Sixty Eight Thousand Dollars ($268,000.00) from the Library Capital Donations Fund, as well as authorize the selectmen to accept the gift of donations and pledged donations currently estimated at One Hundred Forty Two Thousand dollars ($142,000.00), generated by the Friends of the Tuftonboro Free Library or the Library Fundraising Committee,¹ to be used to offset the costs of the project and to reduce the amount needed to be taken in a bond or note. The first payment on the bond or note will not be made until year 2019.
The article should be amended at Town Meeting.
- I forget what exactly the fundraising committee is called, but its mandate is to raise funds.