Minutes from Selectmen’s August 1, 2016, Meeting

The draft minutes for the Selectmen’s August 1 meeting have been posted to the Tuftonboro town web site by Administrative Secretary Karen Koch. Here is the portion of the minutes that deals with the Lang’s Pong Road construction contract:

The Selectmen revisited the Lang Pond Road award of bid and invited Jack Parsons to participate in the conversation. Selectman Marcussen shared his opinion that his vendor choice is still the same. He reaffirmed that Integrity Earthworks is inexperienced in this area.

Selectman Wood shared his formerly mentioned research regarding RSA 447:16. His opinion is to let Integrity Earthworks add a bond if it is legal and acceptable or to reject all bids and redo the process.

Chairman Sundquist’s opinion stayed the same. She doesn’t feel that the Selectmen’s reasons are strong enough to not move forward with Integrity Earthworks if they present a performance bond.

Jack Parsons confirmed that no official prequalification process was done. Although, none of the applicants were on the State approved contractor list. His recommendation is based on experience. He researched Integrity Earthworks past projects but did not find any solid evidence of past experience applicable to this project.

There was some discussion about the bond requirements, bond amounts, and the low bidder’s confirmation that they would post a bond if required. Jack Parsons expressed concern that he doesn’t want to have to use the bond. Selectman Marcussen explained further that a bond protects the Town in the event of non-performance but it doesn’t get the job done in a timely manner. Selectman Wood added to this explanation stating that a bond is an insurance policy.

Chairman Sundquist doesn’t feel that the chance of non- performance is reason enough to not accept the lowest bidder. Selectman Marcussen feels the opposite as the lowest bidder doesn’t have any demonstrative experience in this area. Selectman Wood shared that he also doesn’t believe that the reason to reject Integrity Earthworks is enough. He is most comfortable rejecting all bids, and redoing the process. It was then discussed amongst the group that the only issue with redoing the process is that all bidders know the other offers at this point.

Selectman Wood made a motion to stand with the original motion of the original bid, seconded by Selectman Marcussen. Vote passed 3-0. Chairman Sundquist voted yes with hesitation. It was asked that Karen Koch relay this decision to Integrity Earthworks.

And during public comment:

During public input, Betsy Frago asked about Norway Plains’ responsibility in regards to the review of the Lang Pond Road bids as well as questioned if Norway Plains reviewed the Invitation to Bid packet. Chairman Sundquist confirmed that Norway Plains did make mention that a performance bond was not included on Integrity Earthworks’ bid but also didn’t know if it was required or not. The Selectmen didn’t know if Norway Plains was provided the Invitation to Bid packet for review. Chairman Sundquist shared that none of the people involved in creating the Invitation to Bid packet were aware that a bond was required until after the submissions were received. Ms. Frago also questioned why Selectman Marcussen was not available to attend the meeting Friday with Integrity Earthworks. Chairman Sundquist explained that Selectman Marcussen was originally available to attend but circumstances arose that prevented him from staying. Although Integrity Earthworks has not indicated that they would sue the Town, she asked if NHMA was asked if the Town can be sued for not taking the lowest bid. Chairman Sundquist responded that they did not inquire about this and this is a concern of hers as well. Ms. Frago also asked about the cost difference between the lowest bid and the second lowest bid. The Selectmen explained that it is approximately a $30,000 difference.

 

Minutes from Selectmen’s Meeting of Friday, July 29, 2016

The draft minutes from Friday’s meeting between Selectmen Carolyn Sundquist and Lloyd Wood and representatives of Integrity Earthworks has been posted on the town’s web site by Administrative Secretary Karen Koch:

Chairman Sundquist and Selectman Wood met with Steve Pacsay, owner of Integrity Earthworks and their estimator, Doug Phillips. (Selectman Marcussen was unable to attend this portion of the meeting.) Mr. Pacsay asked to meet with the Selectmen to express his concerns of their recent decision on the award of the Lang Pond Road project and to get a further understanding for the basis of Integrity Earthworks’ bid being rejected. He read aloud his email that he sent to the Selectmen. The verbiage in the bid requirements did not require a bid/performance bond for the project, which his company is willing to provide if required. He understands that when his company asked if they could add the cost of the bond to their bid they were denied based on the question of whether it was legal or not to do so. He expanded upon his previous management/supervisory experience in the heavy construction industry with degrees of difficulty, deadlines, and dollar values far in excess of the Lang Pond Road project. He views this project as a critical stepping stone in the growth and presence of his company and stated that this was considered part of the strategy when placing a value on this project. He expressed his confusion on the outcome of the decision made and is contemplating to what degree his company wants to pursue this matter. He asked that the Town research the legality of the decision that was made prior to final contract award. Integrity Earthworks feels strongly that the fair thing to do would be to reject all bids, revise the bid requirements and restart the bid process.

Chairman Sundquist expressed her agreement with Mr. Pacsay and explained that this is why she voted against awarding the bid to LA Drew. She proceeded to read aloud Selectman Marcussen’s statement. His primary reason for not supporting award of the contract to the lowest bidder is that he doesn’t believe that the low bid is “responsible.” Doug Phillips responded by stating that no pre-qualifications were asked for as part of the process therefore all bidders had to assume that they were qualified. Mr. Phillips went on to explain that 25% of their business is in much larger commercial projects and their bid form references such. They feel that they are very qualified for this project. Mr. Phillips commented that Selectman Wood stated that the RSA was clear on the requirements of a performance bond over $35,000 but didn’t know of a solution without redoing the paperwork. Mr. Phillips feels that the process should be redone and a pre-qualification process done for each bidder. Mr. Pacsay explained that he is aware of the perceived capacity of his business within the community, so when he knew that his company had the low bid he reached out to Jack Parsons twice (as well as Norway Plains) and asked to meet with him and the Selectmen, if necessary, and it was denied both times, stating that there was no need to do so. Mr. Pacsay expanded on his past experiences of large responsibility pertinent to this type of project.

Selectman Wood thanked them for stepping forward and complimented Mr. Phillips in terms of acting as their agent. He feels it is important to stay fair and open. He spoke of RSA 447:16 and the notes of the decisions that were made in terms of this RSA, particularly #4 Bond-Generally, given that a general contractor was required to obtain a bond under RSA 447:16, which bond stated that if there are conflicts between the terms of the understanding and the statute, the statute should be resolved in favor of the statute and #7 Bond Provisions, this section did not require the terms of the bond required to be read into a contract with the Town. His reiterated his duty is to follow the letter and spirit of the law. He said that the Town cannot, after putting one set of specifications out to bid, decide to accept a bid and then calculate it differently. Although he confirmed that they can be rejected legally. He also read aloud the minutes of the July 26, 2016 meeting where Mr. Phillips noted that they feel that their interpretation of the bid form should not slow the process of the project and they are happy to accept the Board’s decision without recourse or any question. Mr. Pacsay acknowledged this.

Chairman Sundquist read the motion that was made by Selectman Marcussen at the July 26th meeting bringing attention to the point that the motion made was not a result of the bond not being included.

Selectman Wood moved that the Selectmen reconsider their actions taken in terms of awarding the Lang Pond Road project, seconded by Chairman Sundquist. Vote passed 2-0. The Selectmen will reconsider their decision at their Monday morning meeting.

Mr. Pacsay stated that he is not asking that his company gets the job. He is just asking that the Town redoes the bid process and makes the bid process clear.

(Emphasis added.)

Acknowledging Error, Selectmen Vote to Reconsider Lang’s Pond Road Contract

“We erred,” said selectman Carolyn Sundquist in a meeting today with Integrity Earthworks. “We don’t know all the RSAs [state laws].”

Steve Pacsay, president of Integrity Earthworks of Wolfeboro, had requested today’s meeting after the selectmen rewarded the Lang’s Pong Road contract to LA Drew in an emergency meeting on Tuesday morning. The selectmen rejected Integrity Earthworks’ bid because it did not include a security bond. However, the bid instructions stated a bond was not required.

Sundquist stated today that the selectmen didn’t know that New Hampshire state law required bonds on projects that are more than $35,000, until they saw an article about it in a municipal magazine last week.

Integrity Earthworks asked the selectmen to reject all the bids and solicit new bids. “I don’t want to sound like a sore loser,” said Steve Pacsay. “This not the first contract that we won’t get or will get.” His concern was that the bid process had not been fair. Integrity Earthworks, he said, would have included a bond if the bid instructions had required one.

Selectman Lloyd Wood made a motion to reconsider the decision on the contract. Selectman Sundquist seconded the motion, and then Sundquist and Wood both voted yea. Selectman Bill Marcussen was not present to vote. The selectmen will therefore reconsider the decision at their 9AM meeting this coming Monday.

Marcussen left before Integrity Earthworks came to meet with the selectmen. The full board of selectmen were present for a 10:30 meeting this morning with Meredith Savings Bank, which is taking over the Melvin Village branch location from Peoples’ United bank. The selectmen are looking to move town accounts from Peoples’ to Meredith Savings. When the meeting with Meredith Savings finished at about 11:20, Marcussen left.

Marcussen had been the most vocal opponent of awarding the contract to Integrity Earthworks. It’s unclear why he did not stay for the scheduled 11:30 meeting with Integrity Earthworks.

Selectmen Award Lang’s Pond Road Contract to LA Drew

After a bungled bid process, the selectmen awarded the Lang’s Pond Road contract to LA Drew this morning in an emergency meeting. At their meeting yesterday the selectmen awarded the contract to LA Drew even though Integrity Earthworks of Wolfeboro was the lowest bid. The selectmen stated the reason for awarding the contract to LA Drew’s higher bid was that Integrity Earthworks had not filled out the bid package correctly by not including a bond. However, an Integrity Earthworks representative who was present at the meeting pointed out that the bid instructions had clearly stated that the bond was not required, prompting the selectmen to reconsider their initial awarding of the contract, since the decision had been made based on incorrect information.

The selectmen hired an outside firm, Norway Plains, to review the bids to ensure the process was fair. At last night’s meeting the Integrity Earthworks representative stated he had called Jack Parsons, representing the town, as well as Norway Plains, to make sure that his company’s bid was complete and he was told that it was. One of the reasons the selectmen had expressed for going into recess last night was that they wanted to talk to Jack Parsons, but Parsons was not present at this morning’s reconvened meeting.

At this morning’s emergency meeting chairman of the selectmen Carolyn Sundquist said that she would be willing to award the contract to Integrity Earthworks if they put up a bond. Selectman Bill Marcussen stated his concern that Integrity Earthworks is primarily a high-end residential contractor and lacks the experience of constructing roads. He was concerned that Integrity Earthworks would not be able to complete the project before winter. Selectman Lloyd Wood stated his belief that it would be illegal under state law for the town to award the contract to Integrity Earthworks so long as they issued a bond because it would amount to changing the bid requirements at the last minute in order to favor one of the bidders. Wood stated that while he didn’t want to use the word “misleading,” the bid instructions had not been clear. Sundquist stated that instructions were “unfortunate.”

The Integrity Earthworks representative (the same one from last night) was at this morning’s meeting and offered that while 75% of his company’s portfolio is indeed high-end residential, they have a number of current and pending contracts for large-scale non-residential work including the Rochester City Hall Annex and the Army National Guard. These contracts, he pointed out, exceed the dollar value of the Lang’s Pong Road contract.

Selectman Marcussen made a motion to award the contract to LA Drew. It was seconded by Lloyd Wood. Chairman Sundquist called a vote. Marcussen and Wood voted yea. Sundquist voted nay.

After the vote, the Integrity Earthworks representative thanked the selectmen for the process and shook hands with all three of them. There was no representative from LA Drew at either last night or this morning’s meeting.

LA Drew’s winning bid was $140,772 and Integrity Earthworks’ lower bid was $112,906. The Integrity Earthworks bid would have been higher if it included a bond, but would still have offered a considerable savings to the taxpayer.

Confusion Over Awarding of Contract for Lang’s Pond Road

After having received four bids on July 11th, the selectmen voted today to award the contract for the reconstruction of Lang’s Pond Road to LA Drew, Inc., even though Integrity Earthworks, LLC., had submitted the lower bid. Chairman Sundquist stated that the reason was that Integrity had not included a bond in their bid, as required. Representatives of Integrity Earthworks were at the meeting and stated that the bid instructions had indicated that the bond was not required. They said they would have included a 3% bond otherwise, but had followed the bid instructions. They also stated that they had called Jack Parsons, who is the town’s code officer and was overseeing the bid process, to ask if Integrity’s bid was complete and that he told them that it was.

LA Drew’s bid was $140,772 while Integrity Earthworks had bid $112,906. However, with a bond the bid would have been higher, though still lower than La Drew’s.

The selectmen then tried to check whether the bond had been optional, but didn’t have the document in front of them and decided to table the discussion. The Integrity Earthworks representatives then left. One of them returned a short while later with the bid instructions and the relevant part highlighted. The selectmen thanked him then returned to their other business.

At the end of the regular meeting they reopened discussion of the contract. Selectman Lloyd Wood read from an excerpt from a municipal magazine he had excerpted, which indicated that the state requires bonds on contract bids of more than $35,000. However, the bid instructions for Lang’s Pond Road did clearly state that the bond was “not required.”

The selectmen were unsure what to do, and not wanting to make a decision without more information, decided to postpone another vote until tomorrow morning at 9AM. They would like Jack Parsons to be present.

The selectmen said that they were not adjourning their meeting, but instead went into recess. They are not giving a 24-hour notice of tomorrow morning’s meeting, they said, because it is not a new meeting. Selectmen Wood stated he believed that was legal and chairman Sundquist said she hoped it was.

According to the New Hampshire attorney general’s Memorandum on New Hampshire’s Right-to-Know law, RSA Chapter 91-A:

Additional notice may not be necessary for continuation of public meetings. See Town of Nottingham v. Harvey, 120 N.H. 889, 894–95 (1980) (recess of a public zoning meeting until a later date without notice of the second date did not violate Right-to-Know law). When practical, posting notice of meetings that are to be reconvened supports the spirit and objectives of the Right-to- Know law.

The selectmen did post a notice to the town’s official web site this evening:

On Tuesday, July 26, 2016 at 9:00 a.m., the Board of Selectmen will reconvene to make a final vendor decision for the Lang Pond Road project. The meeting will be held at the Town Office.

*THis post was updated because I misidentified Integrity Earthworks, LLC. I called them Integrity Contractors, Inc., at first. My apologies.

Shagoury: Possible Overdose Death on Sandy Island

Police Chief Andrew Shagoury reported to the selectmen that a recent death on Sandy Island could be the result of a drug overdose and that the police department is waiting on a toxicology report. If it is an overdose death, the toxicology report will indicate if the drugs were illicit. Chief Shagoury said that the department received an emergency call that turned into an unattended death. The police department will issue a press release when more information is available.

Thompson Reports New Ambulance in Service

Fire Chief Adam Thompson reported to the board of selectmen that the new ambulance, which is leased after being approved at Town Meeting this year, has entered service. Thompson confirmed that the new ambulance will go out on every single call even if Stewart’s Ambulance Service is on scene. Tuftonboro has a contract with Stewart’s to provide emergency coverage.

The new ambulance will be on scene as backup but will not transport patients unless a Stewart’s ambulance is unable to transport. The fire department is filling out paperwork in order to be able to charge Medicare for transportation costs (for patients with Medicare).

Selectmen Discuss Police Building, Library

met with Police Chief Andrew Shagoury this morning to hear his thoughts about a new police building. Chief Shagoury said he would prefer to wait and put more money into the police department facility capital reserve fund, rather than move for a warrant article at the next Town Meeting for the construction of a new facility. He noted that if the town has the money in hand to spend on a building project, then Town Meeting can authorize the expenditure with a 50% vote. However, if a loan is required, then a 2/3 vote will be required. A 2014 study concluded that a new, standalone police building would cost just over $1,000,000. The police department facility capital reserve fund had approximately $332,350.39 in it as of December 2015, and the 2016 Town Meeting authorized the addition of $50,000 to the fund, bringing the balance to approximately $382,350.39. (It is an interest bearing account, so the exact balance as of today will be slightly higher.)

Chief Shagoury said he did not think that expanding the current police offices at the town office would be a good idea. There wouldn’t be significant cost savings in his opinion and it would be difficult to have construction going on at the town offices. He would prefer a new building on a new location.

Selectman Carolyn Sundquist said that the new library building warrant would likely not come back for a vote at Town Meeting until 2018, so the police department facility capital reserve would have two more years of putting money away.

Selectman Lloyd Wood said that in his mind and many people’s the police building is linked to the library. Sundquist said she didn’t want to bring the warrant up without enough money in the capital reserve fund because the warrant would fail. My notes don’t tell me if she meant the warrant for the library or for the police building, but she stated twice during the meeting that she didn’t think the library would come back for a vote until 2018.

Wood said he very strongly would like the new police building to be located near the library and the elementary school. He stated that when he was police chief in Auburn, New Hampshire, he worked two cases that involved the deaths of little girls. He feels that if the police building is close to the school and library it will send a message to “all the creeps, perverts, and pedophiles.” He said that was more his personal opinion than a statement as a selectman.

Discussion followed of whether there needed to be detailed building plans at this point. Selectman Bill Marcussen stated he didn’t think it made sense to have detailed plans before putting money away.

The general consensus was to put more money into the police department facility capital reserve fund over the next two years.

The selectmen also announced they will be attending the Ragged Island Association’s annual meeting tomorrow, July 9. They are meeting at the dock at 9AM.

Sundquist also alerted Marcussen and Wood that later this month they will need to discuss a memo sent to them by Clay Gallagher, the transfer station director, about cost-of-living increases in the budget for social security contributions to employees.

The selectmen had met for about thirty minutes in a non-public meeting prior to talking with Chief Shagoury. According to the agenda for the non-public portion of the meeting they were discussing “a legal issue.” After one point during the non-public meeting, Administrative Assistant Karen Koch left the room so that the selectmen could discuss an employee evaluation. Koch said she wasn’t sure if they were evaluating her or not. She also said she wasn’t sure if the selectmen wanted her to divulge the nature of the “legal issue” that they had been discussing. After about five minutes the selectmen called Koch back into the room for another five or so minutes before they opened the public portion of the meeting.

Selectmen Pay Rick Sager $210 to Tell Them to Follow the Law

rick sager invoice cemetery authorityThe Tuftonboro selectmen broke state law on April 25th by illegally authorizing a payment to Cory Hunter for maintenance work done in the town cemeteries. By law, only the cemetery trustees have the power to authorize such payments. The selectmen were told by Sue Weeks, who is the chairman of the cemetery trustees, at the April 25 selectmen’s meeting that the cemetery trustees were responsible for maintaining the cemeteries, not the selectmen. The selectmen ignored her and voted to pay Cory Hunter, thus breaking the law.

At the May 9th selectmen’s meeting during public comment I cited the specific state laws that govern the cemeteries, which clearly state that only the cemetery trustees have the authority to maintain the cemeteries.

Rather than simply read the statutes themselves and abide by them, the selectmen chose to seek legal counsel from their attorney, Rick Sager. According to the meeting minutes of a hastily scheduled, non-regular meeting on May 13, Sager sent them a memo advising them too “divorce” themselves from the cemetery operations. In other words, Sager clearly told them to follow the law. The selectmen have refused to make Sager’s memo available to the public, citing client-attorney privilege. They have also refused to allow the cemetery trustees to view the memo, even though Sager’s legal opinion obviously concerns the cemetery trustees in their official capacity as elected town officials.

For his advice to follow the law, Sager charged the tax payers of Tuftonboro at least $210.

His invoice lists .80 hours for “Email to/from Karen [Koch, administrative secretary] re: cemetery trustees, including legal research” for which he charged $140. In addition he charged $17.50 for 0.10 hours for “Email to/from Karen re 91-A issue (cemetery trustees).” As well as $52.50 for 0.30 hours for “E-mail to/from Karen re: how best to deal with legal opinions.” Presumably those last two were in regards to whether the selectmen would be required to share the legal memo with the cemetery trustees.

There is an additional charge of $122.50 on 5/18/16 for 0.70 hours for “E-mail to/from Karen re: 91-A issues.” It’s unclear if this was directly related to the selectmen breaking the law on April 25th. 91-A is the “Right to Know” law. However, I had asked Karen Koch in an email on May 17th to view Sager’s memo.

The taxpayers of Tuftonboro had to pay Rick Sager because the selectmen broke the law. $210 is not large in the grand scheme of things. However, it was entirely unnecessary.

The selectmen should have listened to Sue Weeks on April 25th. Not only did she tell them that the cemetery trustees, not the selectmen, were responsible for the maintenance of the cemeteries, she also told them that the cemetery trustees were meeting the follow week to review Hunter’s invoice. She also informed the selectmen that contrary to Carolyn Sundquist’s claim, there was no written contract between the town and Hunter. Furthermore, she told them that Hunter had down the spring clean up work without first talking to the cemetery trustees. Indeed, the last the trustees had heard from Hunter, last fall, he was not sure if he was going to continue doing the work, and wanted to think about it over the winter. Weeks then said that Hunter submitted an invoice April 8th, after the cemetery trustees’ April 5th meeting. Thus, the cemetery trustees had not even had a chance to review his invoice yet. In fact, the trustees hadn’t found out about it until at least a week later. Knowing that the cemetery trustees were meeting to review the invoice, the selectmen nevertheless chose to step in and pay the invoice to Hunter. By doing so, they broke the law. Rick Sager’s advice that the selectmen “divorce” themselves from the cemeteries proves the point.

At the May 24th budget committee meeting, while discussing whether to allow public comment, Carolyn Sundquist (she is the selectmen’s representative to the budget committee) said, “Could I just ask — what would the public say that would change our minds?” She also reminded the budget committee members that “the public does not have a right to speak.”

If the selectmen had listened to the public, in the person of Sue Weeks, on April 25th, then they might not have broken the law, and they would have saved the tax payer at least $210.