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

Published in Town Government
Max Ledoux

Author: Max Ledoux

I've lived in Tuftonboro since 2014. I grew up in Lisbon Falls, Maine (the Moxie capital of the world). I run tuftonboro.net.

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