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 Selectmen May Have Unintentionally Broken New Hampshire Law

At the May 9 meeting of the Tuftonboro Board of Selectmen, I expressed my concern that they may have unintentionally broken the law by voting on April 25 to pay the bill for maintenance work done on town cemeteries.

There is a separate (and to me less concerning) issue of whether there is a contract between the town and the landscaper who did the work. The Granite State News has reported inaccurately for the past two weeks that there is an “ongoing” contract and a contract that was “signed in 2010.” But the document from 2010 has no signatures on it and therefore was never at any point a contract. Further, this unsigned document has an expiration date of April 15, 2011. Selectmen Carolyn Sundquist acknowledged that there is no contract at the May 9 meeting (I also gave a copy of the document to reporter Elissa Paquette). I don’t know the landscaper and am not making any judgment whatsoever about him. This is not about him or the good work he has done for the town.

This is about the selectmen’s apparent decision to overstep their bounds. The landscaper submitted an invoice on April 8, after the cemetery trustees’ April meeting. The next trustee meeting was scheduled for May 3, the first time they’d be able to review the invoice. Sue Weeks told the selectmen at their April 25 meeting that the cemetery trustees were going to review the invoice on May 3. It is not unreasonable for contractors to wait less than 30 days to be paid on an invoice. (Many invoices I’ve seen ask for payment within 60 days.) The trustees had not left the bill unpaid; they had simply not had a chance to review it yet.

Selectmen Sundquist stated on May 9 that no trustee had stepped forward to say “that is our responsibility.” This is not accurate: Sue Weeks said on April 25, “The trustees are responsible for the cemetery maintenance.”

The selectmen knew that the cemetery maintenance was the responsibility of the cemetery trustees, knew that the trustees were meeting the following week, and knew that the trustees intended to review the landscaper’s invoice and pay him.

By state law, the selectmen are not authorized to make payments for the maintenance of town cemeteries—unless I am misreading the law. But I am not a legal expert, so I have asked the selectmen to review the statutes and state for the record whether the selectmen have the authority to override other boards.

This may seem picayune, but it’s important. Selectman Lloyd Wood has stated in recent meetings that the town enjoys a good reputation with the state. But would the state continue to hold us in high esteem if the selectmen were to break the law? It seems that the selectmen not only took power from the cemetery trustees, who are elected by us to maintain the cemeteries; they also took power from the Town Meeting. Only Town Meeting can vote to make the selectmen trustees of the cemetery trust funds. I’m concerned the selectmen have inadvertently opened up the town for liability in a lawsuit. Even if it were not a violation of state law for the selectmen to usurp the power of another board, it would be setting a bad precedent. If the current board of selectmen can override the cemetery trustees, a future board of selectmen could override, say, the library trustees.

We have separation of powers at the federal, state, and local levels for a reason. We put systems of checks and balances into place so that we don’t have to rely on the good intentions of our fellow human beings, who are, like all of us, imperfect. James Madison wrote in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

I don’t think the selectmen intended to break the law, but I fear that they did.

Tuftonboro Town Reports

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Tuftonboro town report 2010

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Tuftonboro town report 2012

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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.

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

The Founders’ Fears

There are undoubtedly many reasons that the American Revolution succeeded and the French Revolution failed. Indeed, history shows that most revolutions end in violence and tyranny. But one reason must surely be that while other revolutions sought to remake man and human nature, the American Revolution explicitly grappled with man’s unchanging nature. In his editorial last week, the editor disdainfully dismissed the Founders’ concerns about mob rule as “well-worn.”

If the editor will forgive me for quoting some more “well-worn” folderol, Alexis de Tocqueville wrote: “If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.”

But the Founders were just as worried about minority factions as they were about majority factions. What is a king if not a minority of one? Madison defined factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

This is why the Constitution intentionally seeks to pit factions against one another — so that neither the minority nor the majority will be able to tyrannize the other. The House of Representatives is elected directly by the people. The Senate was originally elected by state legislatures, themselves elected by the people of the states. The president is elected by electors, originally selected by the state legislatures, later by popular election. The Supreme Court justices are appointed by senators and the president. At every step, the legitimacy of our constitutional Republic stems from the people, whose passions are filtered through layers of representative government.

The ideas of our founders may be well-worn, but they have sufficed.

The Tyranny of the Majority

In 1787, James Madison, writing as Publius in Federalist No. 10, warned against majority rule in pure democracy: “Such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

It is just this type of tyranny of the majority that lends support to demagogues such as Bernie Sanders. When Sanders says that it is “immoral” for the “top 1 percent” to have as much wealth as the “bottom 90 percent combined,” what is he advocating? For that matter, what did Hillary Clinton mean (other than that she was trying to lean as far to the left as possible) when she tweeted, “The top 25 hedge fund managers make more than all of the kindergarten teachers in America combined. That’s not acceptable.” What is she proposing that the teachers (the majority) do to the top 25 hedge-fund managers (the minority)? Donald Trump, who decided to call himself a Republican about five minutes ago, is no less a demagogue than the other two when he appeals to the silent “majority” who have been taken “advantage of.” All three are suggesting that the “majority” punish the “minority.”

Madison, like so many of the Founding Fathers, worried deeply about the dangers of pure democracy. Federalist No. 10 is devoted to mitigating the tyrannical effects of majority rule; Madison wishes to achieve this through factions (parties or other interest groups that arise naturally due to human nature). “The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.” The Constitution, drafted largely by Madison, creates a divided government in which power is intended to be balanced. We do not live in a democracy, and so long as we follow the Constitution, we can avoid the dangers inherent in such a form of government.

Maynard Thomson (Letter to the editor of the Granite State News, March 31) is right to ask us, “If 51 percent of the voters want something, are they justified in using government to force the other 49 percent to support that undertaking?”

Spending More Is Still Spending More

In their editorial on March 31, the editors of the Granite State News wrote of the county budget that it “included reducing the budget for the fishing expedition known as the forensic audit from $200,000 down to about $140,000 – still a waste of taxpayers’ money, but less of a waste.” I share the editors’ frustration when it comes to wasting taxpayer money.

In a previous letter to the Grunter, I wrote about budget maneuvers by which legislators raise spending less than they had initially intended and then claim it as a “cut.” This is a perfect example. The county did not cut spending on the forensic audit from $200,000 to $140,000. Let me repeat that: The county is not cutting spending on this. It is not a cut. The county will be spending $140,000 on a budget line that did not exist in the previous budget. That, my friends, is a spending increase.

Say I go to buy a new car. The dealer shows me a new Mustang for $50,000. Then he shows me a used Chevy S10 for $4,000. I want the Mustang. But I can afford the S10, so I buy that. Did I cut $46,000 from my car budget?

When you increase spending less than you had originally planned (or than you wanted), you are still increasing spending.