Selectmen Meet with Rick Sager about Auctioning of Town Property

Rick Sager is the town of Tuftonboro’s attorney. The board of selectmen (Chair Carolyn Sundquist, Lloyd Wood, and Bill Marcussen) met with him on June 6, 2016, to discuss whether to also use his services as an auctioneer to sell properties that the town owns due tax deeding (i.e. the previous owners failed to pay property taxes). During public comment afterward, Bob McWhirter asked if the selectmen thought it might be a conflict of interest for Rick Sager to both be the attorney for the town as well as the auctioneer who then sells the properties. Carolyn Sundquist said that no, it is not a conflict of interest.

[Post updated: See Bob McWhirter’s comment below.]

HB606 Passes Legislature; Awaits Governor’s Signature; Prohibits Charging for Electronic Records

Last week the New Hampshire House and Senate agreed to a conference committee amendment to HB606 that adds language to RSA 91-A (the “Right to Know” law) that clarifies that no money may be charged for inspecting or delivering (i.e., emailing) electronic copies of public documents.

91-A 4:IV No fee shall be charged for the inspection or delivery, without copying, of governmental records, whether in paper, electronic, or other form.

The bill now goes to Governor Hassan to be signed into law.

The Tuftonboro selectmen will need to update the town’s official policy. However, since the town has not been charging any fees for the delivery of electronic copies, in practice nothing will need to change.

Cory Hunter’s New Contract

Corey Hunter is charging $60 an hour
Cory Hunter’s contract is a public document

[Updated] The selectmen have signed a contract with Cory Hunter for landscape maintenance of certain town properties. The board of selectmen recently acknowledged that, contrary to previous claims by Selectman Carolyn Sundquist, no written contract existed between the town and Mr. Hunter for his services. As a result, the selectmen signed a contract with Mr. Hunter. However, the contract has no start and end dates, and contains no conditions.

According to the contract, Mr. Hunter will charge the town of Tuftonboro $60 an hour for the spring and fall cleanup. For other services he charges a flat fee. The Bureau of Labor Statistics reports that the hourly mean wage for an individual landscape worker in New Hampshire is $14.31. It is unclear how the flat fees would translate to hourly wages because some of the fees would go to supplies, such as mulch, and toward machine maintenance and fuel. The contract does not define what a “cleanup” entails or how many workers would be involved, so it is impossible to tell without further information whether $60 an hour is or is not an appropriate fee. I contacted the town of Wolfeboro to inquiry about their landscaping for comparison, but I was told that they do everything in-house, not through a contractor.

When I asked who had drawn up the contract, Karen Koch, the administrative secretary, wrote in an email that Mr. Hunter, not Rick Sager (the town’s legal counsel) had written the contract.

The contract provides no protection for the town in the event of liability issues. It does not require Mr. Hunter to carry liability insurance and does not specify how the work is to be done. In comparison, the 2010 document, which was never signed and therefore never a binding contract, contained clauses that would have required Mr. Hunter to carry $1,000,000 in general liability insurance, as well as to obtain all relevant licenses and permits necessary to perform work on town properties. In addition, the contract provides to protection for Mr. Hunter. If for some reason the town were to refuse to pay Mr. Hunter for services rendered, there is no clause that would protect him in the event he was forced to sue the town for recompense.

Update: I updated and revised this post after I originally posted it. I should have written it more neutrally from the start. A reader pointed out that perhaps the $60 an hour will cover multiple workers. That is certainly possible. If the contract spelled out what “spring and fall cleanups” entailed and how many workers would be used then that would go a long way to explaining the reasoning behind the $60 an hour fee. Also, I did not intend to imply that I believed that Mr. Hunter should be paid the exact hourly mean wage as listed by the BLS. I meant only to illustrate what I thought as a huge, unexplained imbalance between the two figures. I do understand that labor is not the only cost of doing business. 

Budget Committee to Allow Public Comments at End of Meetings, After Votes

At their May 24, 2016, meeting, the members of the budget committee discussed whether to allow public comment at their meetings. There was broad agreement that the public should be given the opportunity to give input at meetings. The question was whether to allow it during the meeting on relevant topics before the committee votes, or to restrict it to after all votes, immediately before adjournment.

Member Tyler Phillips, Sr., said that it was important to move on from the sense of “Stalinesque” muffling of the public, a perception that he said some had last year when the selectmen voted to not allow public input at their meetings.

Steve Brinser, vice-chairman of the committee, and newly elected member John Libby favored allowing public comment in context after discussion of a particular subject, before a vote.

Bob Theve, newly re-elected to another term, expressed his belief that the public could use the public input to disrupt the meetings. “Do you all want to be here until 3 o’clock in the morning?” He asked.

Carolyn Sundquist, the selectmen’s representative to the budget committee, reminded the other members that while the meetings are open and the public has a right to attend, “they do not have a right to speak.”

The committee voted to allow public comment at the end of meetings, after all votes. Chairman Carla Lootens then stated that they could always revisit the issue if they wanted, but she felt better have an official policy in place.

Amendment to Right to Know Law Clears Conference Committee

A conference committee on HB606 has issued a report with an amendment to HB606. This bill clarifies that no fees may be charged to inspect or deliver records when no copies are made.  The amendment…

Source: HB606 Amended by Conference Committee

This is of interest to Tuftonboro residents because the selectmen are currently planning on revising the electronic copy policy in order to comply with the recent New Hampshire Supreme Court decision in Green v. SAU 55. Selectman Carolyn Sundqvist stated at a recent board meeting that though the policy has not yet been updated that the town would be comply with the decision.

The Supreme Court in Green does not directly address whether municipalities may charge for electronic copies, only states that if a record exists in electronic form then the municipality must make the record available electronically. The Court did note, however, that RSA 91A, the “Right to Know” law, allows municipalities to charge only the actual cost of making a copy of a record and that the cost of making an electronic copy is almost nothing. Quoting another court, the New Hampshire Supreme Court wrote, “The cost of copying and transporting electronically stored information is virtually nil.”

The New Hampshire legislature appears to be recognizing this reality by moving closer to expressly forbidding municipalities from charging for electronic copies of public records.

Tuftonboro has already adopted this in practice, and the official policy will soon follow. I have obtained several public records electronically without charge since the New Hampshire Supreme Court’s decision in Greene.

The Selectmen “Cede” Authority They Did Not Possess

The May 19 edition of the Granite State News carries a front page headline: “Tuftonboro Selectmen Cede Authority for all Cemetery Operations to Trustees.”

The Selectmen never had authority, under the law, for the operation of town cemeteries, and therefore can not be said to have ceded that power. Indeed, Selectmen Bill Marcussen is quoted as saying, during the impromptu May 13 meeting, “The cemetery trustees have clear authority.” This is clear under a plain reading of the law. I don’t claim to be a legal expert, however, and have always stated that I could have been wrong about the law. The selectmen have now essentially acknowledged, however, that they agree with my interpretation of the law.

And yet, the selectmen appear to have asked Cory Hunter to do more work at the Town House Cemetery.

The Granite State News reports, “Selectman Lloyd Wood asked that Hunter be contacted to take care of the cemeteries at least through Memorial Day in honor of the holiday, and he has agreed.” Contacted by who? The May 13 meeting’s minutes (currently in draft form, subject to revision) state, “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.” If Selectmen asked that the cemetery trustees contact Mr. Hunter, then that is fine. If “it was agreed by the Board of Selectmen to ask Mr. Hunter to mow the cemetery at the Town House,” then that is not fine, by the selectmen’s own admission.

No one is against, certainly I am not, maintaining the cemeteries, especially in advance of Memorial Day. That is not the issue. The issue has always been whether the selectmen had the authority to direct the maintenance of the cemeteries. That is no longer in question. The town’s attorney, Rick Sager, has advised the selectmen to follow the law. Selectmen Marcussen has stated that the cemetery trustees have the authority. Selectmen Carolyn Sundquist has acknowledged that no contract exists between the town and Mr. Hunter.

N.B.: The Granite State News printed my letter (“Why It’s Important“), but accidentally cut off the final paragraph and didn’t give me attribution. Amusingly the letter directly below mine is from Barry Ennis, criticizing the paper for a layout error in last week’s addition.

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

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Tuftonboro town report 1997

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Tuftonboro town report 1999

Tuftonboro town report 2000

Tuftonboro town report 2001

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Tuftonboro town report 2003

Tuftonboro town report 2004

Tuftonboro town report 2005

Tuftonboro town report 2006

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Tuftonboro town report 2010

Tuftonboro town report 2011

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Tuftonboro town report 2015

Tuftonboro town report 2016

Tuftonboro town report 2017