Selectmen’s Meeting July 24, 2017

0:00:0 CALL TO ORDER / PLEDGE
0:00:45 PUBLIC COMMENT
Max Ledoux: You’re breaking 91-A in regards to nonpublic meetings
0:14:10 PUBLIC HEARING: Thompson-Moulton Cemetery “unabandonment”
0:14:50 Sue Weeks: legally there are two cemeteries
0:20:49 Scott Thompson: no problem with Moulton Cemetery being abandoned legally. We’d be happy to also maintain it.
Cross talk
0:25:00 suggestion to continue meeting
0:30:40 Lloyd: It’s a cemetery!
0:34:35 Bill: motion to “unabandon” both cemeteries.
0:35:25 motion passes
0:35:40 APPOINTMENTS
0:36:05 CHRIS SAWYER
Requests reappointment to board
0:38:32 Fenton Varney speaks
0:41:25 Tony Triolo speaks
0:42:30 Lee Ann Hendrickson speaks
0:43:10 Tony & Fenton again
0:44:30 Steve Brinser: Why’d this happen?
0:45:42 Chip: “Tension great enough that previous vote happened.”
0:46:20 Guy Pike
0:46:49 Sue Weeks: When did you make the decision?
0:48:00 Fenton: I never filled out a paper to be reappointed
0:48:28 Lee Ann: in the past I have prepared a memo on behalf of members who express a desire to be reappointed.
Lee Ann: Did you send a letter to John Cameron?
0:51:20 Lloyd: “in the lack of a motion let’s move on.”
0:52:35 Chip we have to have a vote
0:54:39 Bill: Planning Board mishandled Master Plan survey mailing by sending it from General Store post office instead of using town office postage meter from Melvin Village
0:57:57 Chip: motion to reappoint Chris to Planning Board
0:59:10 Chip: Aye, Bill & Lloyd: Nay
1:00:00 Fenton resigns
1:00:25 Guy: “COWARDS!”
1:01:46 DEPARTMENT UPDATES
Chief Thompson (FIRE&RESCUE)
1:13:30 Chief Shagoury (Police)
1:19:00 felony burglary suspect under influence of drugs, had to be taken to hospital then arrested.
1:23:10 Chip: Why are you getting protective gear for fentanyl? Is there a need reflected in crime statistics?
Andy: A lot of the statistics aren’t necessary marked as drugs but the underlying cause is drugs
1:30:49 REVIEW AND APPROVAL OF MINUTES
1:31:05 July 10 Public
1:32:25 July 14 Public
1:33:32 July 10 nonpublic (no changes)
1:33:58 SIGNATURE FILE
1:36:45 Chip next year we should get the discounted oil price for everyone in town
1:36:40 $7,896.75 to SMP for plans for the proposed library renovation
1:40:30 Appoint John Cameron to Planning Board
1:41:05 SELECTMEN’S UPDATES
Bill: Old Homes Days
1:41:58 Chip: Welfare, ambulance
1:42:30 Lloyd:
1:48:05 Chip: Health Insurance provider wants a meeting
1:49:20 Talk about Road Agent
1:50:20 property cleanup
1:52:00 utility poles in poor repair
1:54:45 CORRESPONDENCE
1:57:00 PUBLIC COMMENT
Elissa Paquette
1:57:45 Sue Weeks: Ambulance
2:06:00 Max: Mutual agreements
2:07:40 Elissa: Have other towns sent Tuftonboro bills for mutual aid?
2:08:20 Liane: Planning Board — As staff for PB how do I proceed. If we have no quorum what happens?
2:09:55 Guy: I apologize for outbreak. Bill and Lloyd should resign.
Joe Kowalski: Spectrum
Max: 91-A violations

Bill Marcussen: We Removed Chris Sawyer from Planning Board Because Postage Stamps

Claiming that Chris Sawyer had “bucked the system,” selectman Bill Marcussen cited the planning board’s use of postage stamps to send out the Master Plan survey as a reason she should be removed from her position. No, seriously. She’s out because the planning board used stamps… to mail letters. (According to Bill.)

Pandemonium at Planning Board as Selectmen Sack Sawyer

Chris Sawyer is scheduled to meet with the selectmen today, likely to discuss why they removed her from the planning board earlier this month. Chris was the chairman of the planning board and had asked to be reappointed to another term on the board when her term expired at the end of June. The selectmen decided not to reappoint her, however. Chris won a Right to Know case against the selectmen in 2015, when Carroll County Superior Court ruled that the board had violated RSA 91-A multiple times, including the improper use of nonpublic meetings.

It’s unclear when the selectmen decided to remove her, but she received a two-line letter dated July 10 signed by the selectmen informing her that she was no longer on the planning board. Her name has been removed from the planning board’s page on the town web site.

Steve Brinser has resigned from the planning board in protest and I’m told that John Lapolla also resigned. (Both their names have also been removed from the web site.) In addition, John Cameron’s term expired at the end of June, leaving the board with only four regular members — three of whom were appointed in June.

While the letter was dated July 10, the selectmen did not discuss the matter in public session at their July 10 regular meeting.

However, they did sign a “thank you letter to a board member.”

Chairman Lloyd Wood did not identify the board member they were thanking. The 7/10 public meeting minutes, which are in draft form at the moment, state, “Selectman Marcussen moved to approve a thank you letter to a board member, seconded by Chairman Wood with all in favor.”

Chris said her letter was just two lines long, and this screen shot of Selectman Chip Albee signing the letter midway down the page makes it clear that if it wasn’t the letter to Chris, it certainly was a very short piece of correspondence.

In order to have a letter ready to sign on 7/10, they likely reached a decision at the meeting on July 3, even though there was no specific mention of Chris Sawyer during the public meeting that day.

There was this exchange during the July 3 public meeting, however:

Chip: “Do we have a nonpublic for appointments today?”
Lloyd: “Pardon?”
Chip: “Are we having a nonpublic for appointments today?”
Bill: “I think we need to.”
Lloyd: “If you want, yes. We can have a nonpublic any time we’re [in a] legal meeting.”

By saying “for appointments,” Chip may have been referring to appointing someone to a board. However, at the end of the public meeting, the selectmen said they were going into nonpublic for a “personnel issue.”

The word “personnel” does not appear in the nonpublic meeting section of 91-A. The public minutes for July 3 read, “Selectman Marcussen moved to enter non-public session per RSA 91-A: 3 II (a) to discuss a personnel issue.” As you can see in the video, despite what the minutes incorrectly show, Bill didn’t cite the specific paragraph, which is a violation of RSA 91-A:3-I(b): “Any motion to enter nonpublic session shall state on its face the specific exemption under paragraph II which is relied upon as foundation for the nonpublic session.”

91-A:3-II(a) states “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted.”

Chris was not an employee, so if the selectmen relied on 91-A:3-II(a) to discuss her reappointment to the board, then they violated the law.

Regardless of whether they discussed Chris during the 91-A:3-II(a) session, they are likely in violation of RSA 91-A:3-III, which states, of nonpublic meetings, “minutes of such sessions shall record all actions in such a manner that the vote of each member is ascertained and recorded.”

The minutes for the 91-a:3-II(a) session read only, “the selectmen discussed various personnel issues.”

Furthermore, 91-A:3-II(a) does not allow the selectmen to discuss “various” personnel issues, only the specific issues as defined in the paragraph: “The dismissal, promotion, or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him or her.”

It seems likely that the selectmen either discussed Chris’s reappointment during the 91-A:3-II(a) nonpublic meeting, which would have been illegal, or they discussed it in a non-meeting, which would be illegal.

Selectmen Sue Residents Over Junk Yards

The selectmen (Lloyd Wood, Bill Marcussen, and Chip Albee) have decided to file lawsuits against a number of town residents, according to the draft minutes of a nonpublic meeting held on July 10. The selectmen have determined that the residents, who they have not yet publicly named, are maintaining illegal junk yards on their properties. According to the minutes:

The Selectmen reviewed correspondence from Attorney Sager regarding junkyard properties. Per the Selectmen’s request, Code Officer Jack Parsons joined the meeting.

After much discussion, it was agreed to bring suit against all parties recently addressed by Attorney Sager, except for Masterson.

Masterson has avoided litigation for the time being, so long as the property is cleaned up:

Masterson has stated that they will have everything cleaned up by August 15th. In the event that the issue is not resolved by this deadline then the matter will be revisited.

My understanding is that Masterson’s property is on Dame Road.

There was also discussion of the Libby property on Mountain Road across from the entrance to the transfer station.

The minutes to the nonpublic meeting on 7/10/17 were obtained through a Right to Know request despite the selectmen attempting to thwart their disclosure by improperly claiming the meeting was not subject to RSA 91-A.

Karen Koch, the administrative secretary, wrote in an email:

On Fri, Jul 14, 2017 at 11:35 AM, Tuftonboro Selectmen wrote:

Max,

In response to your request today to review the non-public minutes dated 7-10, the Selectmen considered the non-public meeting of July 10th to be only a review of ongoing legal actions and hence covered by lawyer-client privilege and hence not subject to 91-A.  Since your request was made we have been reaching out to Attorney Sager to confirm that those minutes are not subject to 91-A.  If we find that these minutes are subject to your 91-A request we’ll happily supply them.  Having not heard back from Attorney Sager this morning it may take until Monday for an answer.

Karen

Karen Koch
Administrative Secretary
Town of Tuftonboro
240 Middle Road
P.O. Box 98
Ctr. Tuftonboro, NH 03816
(603) 569-4539 X10
selectmen@tuftonboro.org

However, Karen immediately sent me the minutes after I responded to her here:

On Fri, Jul 14, 2017 at 12:05 PM, Maxim Ledoux wrote:

Hi, Karen,

It was non-public meeting pursuant to 91-A. They had a roll call vote to go in to non-public meeting per 91-a:3:II-L:

Bill: “I move we go into non-public.”
Chip: “Non-public. Do we need to go into non-public? Do you want to take some actions…”
Bill: “To discuss these? I believe we do.”
Chip: “OK. Then I’ll second that.”
Lloyd: “Roll Call.”
Bill: “Marcussen: Yes.”
Lloyd: “Wood: Yes.”
Chip: “Albee: Yes.”
Chip: “That’s a capital L.” (Referring to 91-A:3-II-L)
Bill: “Yes.”
Chip: “Not the lower case L.”
Max: “What’s the specific provision?”
Chip: “Legal.”
Max: “Legal.”

As you know, but I’m stating here for the written record, I was just in the town office and reviewed the binder of non-public meeting minutes.

The minutes for the non-public 7/10/17 meeting were not in the binder.

RSA 91-A:III states in full:

Minutes of meetings in nonpublic session shall be kept and the record of all actions shall be promptly made available for public inspection, except as provided in this section. Minutes and decisions reached in nonpublic session shall be publicly disclosed within 72 hours of the meeting, unless, by recorded vote of 2/3 of the members present taken in public session, it is determined that divulgence of the information likely would affect adversely the reputation of any person other than a member of the public body itself, or render the proposed action ineffective, or pertain to terrorism, more specifically, to matters relating to the preparation for and the carrying out of all emergency functions, developed by local or state safety officials that are directly intended to thwart a deliberate act that is intended to result in widespread or severe damage to property or widespread injury or loss of life. This shall include training to carry out such functions. In the event of such circumstances, information may be withheld until, in the opinion of a majority of members, the aforesaid circumstances no longer apply.

The draft minutes of the public 7/10/17 selectmen’s meeting do not record a 2/3 vote to “seal” the non-public minutes. The public minutes do record that the non-public meeting ended at 11:19AM. It has now been more than 72 hours. While the public minutes are in draft form, I hardly think a reasonable person would find it plausible that you would omit something as important as a 2/3 vote to seal non-public minutes. You take very detailed minutes, and the selectmen only ever correct very minor points, such as typos.

Please provide Bob and me with an electronic copy of the 7/10/17 non-public meeting minutes today, before close of business (4PM ET). The minutes are created electronically, so you can provide them electronically.

Kind Regards,
Max

When I was in the office reviewing the binder of nonpublic meeting minutes, as I mentioned in the email above, I discovered that the minutes for a nonpublic meeting on May 1, 2017, were improperly missing. The selectmen are now attempting to withhold those minutes, even though, like the 7/10/17 minutes, there was never any roll call vote with 72 hours of the meeting ending to withhold the 5/1/17 minutes from public disclosure.

The public meeting minutes from 5/1/17 reveal that the nonpublic meeting was on the same subject — junk yards — as the 7/10/17 nonpublic meeting:

At 3:45 pm, Selectman Marcussen moved to enter non-public session per RSA 91-A:3, II (c) , to discuss junk properties with Code Officer, Jack Parsons[,] and Attorney Sager, seconded by Selectman Albee. Roll call vote: Wood – Yes; Marcussen – Yes; Albee – Yes.

At 4:00 pm, Selectman Marcussen moved to end the non-public session and move back into public session, seconded by Selectman Albee with all in favor. After a brief break, Chairman Wood called the public meeting to order at 4:07 pm and proceeded with the Pledge of Allegiance.

The selectmen have no more grounds for withholding the 5/1/17 minutes than they did for withholding the 7/10/17 minutes.

Selectmen and Road Agent Meet to Discuss Highway Budget Deficit

0:00:00 Pledge
0:00:25 Parks Rec
0:15:42 Lloyd “program budgets”
0:21:45 Jim Bean / Roads
budget review

0:42:30 seasonal expenditures
2016: Fall maintenance $28,309.50
0:47:25 Chip: take extraordinary events (weather) out of road budget. It makes it impossible to budget.
1:00:00 Lloyd: office space for road agent?
1:12:00 Trucks

Selectmen’s Meeting July 3, 2017

0:00:28 Call to Order
0:00:50 Pledge
0:01:25 PUBLIC COMMENT
Max Ledoux — Durgin Road paved. Cars speeding. Spoke to Chief Shagoury about radar trailer
0:02:50 APPOINTMENTS
Road Agent didn’t come for appointment
0:03:30 REVIEW AND APPROVE MINUTES
0:05:00 SIGNATURE FILE
0:06:15 Lot 413-1-16 owes yield tax
Re-appointment of Michael Phelps to conservation commission
Mark Howard
0:08:35 Lloyd “we can go into non-public any time we’re in a legal meeting.”
0:09:00 Letter to county commissioners about county taxes
0:10:30 Lot 65-3-2 yield tax owed, owner has filed intent to cut.
0:14:40 CONTINUED BUSINESS
Hurlbut Trust
0:15:47 Oil / Diesel
Carroll County Oil prices: oil $1.799, diesel $0.15 over cost
price locked in for one year
0:19:25 Application for state aid for bridges — Sodom Road & Tuftonboro Neck Road
0:24:20 Lloyd says HEB was involved in several road projects in town in the past that have had issues, including overruns. Lloyd not sure HEB at fault, but wonders about putting out projects to bid. Chip says we’ll have to put out to bid and also points out that HEB didn’t select the company on one of the projects that ended up going bankrupt. Bill points out that HEB brought to the attention of the selectmen that Tuftonboro wasn’t on the state list of bridges to be repaired.
0:30:00 SELECTMEN’S UPDATES
Bill: Milfoil
0:32:10 Lloyd: Mirror Lake Protective Association, Mirror Lake Watershed Association, note to Chief Shagoury (No Parking ordinance at Union Wharf), letter from Carol Miller re TimeWarner/Spectrum transfer station
0:37:40 Discussion of Road Agent budget. Selectmen want to meet with Jim regularly (every two weeks) so that meetings don’t last two hours.

0:39:03 Video stopped by accident (off camera began discussion of cleaning up 19 Mile Bay beach.)

0:39:04 Trash at 19 Mile Beach
Suggestion to install motion-activated surveillance camera.
0:44:29 CORRESPONDENCE
0:45:06 OTHER BUSINESS
0:45:20 Selectmen to attend Ragged Island Day event (free donuts and coffee!)
0:46:15 PUBLIC COMMENT
Elissa Paquette: Federal election fraud commission seeking public information about voting from states.
0:48:12 Max: Clarify cost of Diesel (will fluctuate over the year)
0:48:50 Elissa: follow up on bridges
0:52:20 motion to go to non-public session to discuss personnel matters

Selectmen Meet with Road Agent

The selectmen (Lloyd Wood, Bill Marcussen, and Chip Albee) with with Jim Bean, the Road Agent, on Friday, June 16, 2017. They discussed the paving on Durgin and Union Wharf Roads, summer mowing of town roads, and the status of driveways on Durgin and Ledge Hill Roads.

Selectmen Open Lake Road Boat Ramp Contract Bids

Selectmen Lloyd Wood and Chip Albee opened bids for the contract of rebuilding the Lake Road boat launch ramp. Selectman Bill Marcussen was not present.

Two bids were received:
Matthew Young for $25,000
A.N. Whipple Construction for $41,862

No decision was made at this meeting. The selectmen will award the contract at their next meeting on June 5, 2017, at 4PM.

The following warrant article was passed by show of hands at Town Meeting 2017:

Article 14: To see if the Town will vote to raise and appropriate the sum of Twenty-Five Thousand Dollars ($25,000.00) to replace the Lake Road boat ramp.

$16,450 to Develop Conceptual Design for Library Renovation

The selectmen voted unanimously last Friday, May 19, to expend $16,450 from the Library Capital Reserve Fund, for a conceptual design for renovating the current library building, following a presentation by Skip Hurt.

Selectman Chip Albee said that he didn’t think any proposal for a library would be ready for Town Meeting 2018. “To be honest, I don’t see it going on the warrant next year,” he said. “[The library trustees] haven’t gotten to the position where they have consensus on their board about what the want to build. So until that happens, [the board of selectmen] can’t get involved. And until we’re involved, and they’re involved, and we all agree, we can’t get the town involved,” meaning a warrant article at Town Meeting, “so there’s more stuff that’s got to go down before.

Approximately $70,000 was spent on a failed 2015 plan to build a new library across the street from the current library. The plan required a 2/3 vote at Town Meeting because it required a loan due to its projected cost of more than $2.3 million.

Video courtesy of Joe Kowalski.

Watch Skip Hurt’s library renovation presentation to the library trustees here and his presentation to the trustees, selectmen, and public here. The trustees also discussed Skip’s presentation here.

Chip Albee Admits Article 9 Was Amended, Still Thinks Selectmen Have Authority to Do Auction

Reversing his previous statements, Selectman Chip Albee acknowledged today that Warrant Article 9 had been amended to authorize the selectmen only to sell tax-deed properties by sealed bids, and not by public auction or any other means. However, Chip maintained that there’s nothing in the law, RSA 80:80, that allowed Town Meeting to restrict the selectmen’s options in regards to selling property.

For reference, here is the text of the RSA:

80:80 Transfer of Tax Lien. –
I. No transfer of any tax lien upon real estate acquired by a town or city as a result of the execution of the real estate tax lien by the tax collector for nonpayment of taxes thereon shall be made to any person by the municipality during the 2-year period allowed for redemption, nor shall title to any real estate taken by a town or city in default of redemption be conveyed to any person, unless the town, by majority vote at the annual meeting, or city council by vote, shall authorize the selectmen or the mayor to transfer such lien or to convey such property by deed.
II. If the selectmen or mayor are so authorized to convey such property by deed, either a public auction shall be held, or the property may be sold by advertised sealed bids. The selectmen or mayor shall have the power to establish a minimum amount for which the property is to be sold and the terms and conditions of the sale.
II-a. If the selectmen or mayor are authorized to transfer such liens during the 2-year redemption period, either a public auction shall be held, or the liens may be sold by advertised sealed bids. The selectmen or mayor may establish minimum bids, and may set the terms and conditions of the sale. Such liens may be sold singly or in combination, but no fractional interest in any lien shall be sold. Such transfer shall not affect the right of the owner or others with a legal interest in the land to redeem the tax lien pursuant to RSA 80:69, or make partial payments in redemption pursuant to RSA 80:71, but the transferee shall become the lienholder for purposes of RSA 80:72 and 80:76.
III. The selectmen may, by a specific article in the town warrant, or the mayor, by ordinance, may be authorized to dispose of a lien or tax deeded property in a manner than otherwise provided in this section, as justice may require.
IV. Such authority to transfer or to sell shall continue in effect for one year from the date of the town meeting or action by the city or town council provided, however, that the authority to transfer tax liens, or to sell real estate acquired in default of redemption, or to vary the manner of such sale or transfer as justice may require, may be granted for an indefinite period, in which case the warrant article or vote granting such authority shall use the words “indefinitely, until rescinded” or similar language.
V. Towns and cities may retain and hold for public uses real property the title to which has been acquired by them by tax collector’s deed, upon vote of the town meeting or city council approving the same.
VI. For purposes of this section, the authority to dispose of the property “as justice may require” shall include the power of the selectmen or mayor to convey the property to a former owner, or to a third party for benefit of a former owner, upon such reasonable terms as may be agreed to in writing, including the authority of the municipality to retain a mortgage interest in the property, or to reimpose its tax lien, contingent upon an agreed payment schedule, which need not necessarily reflect any prior redemption amount. Any such agreement shall be recorded in the registry of deeds. This paragraph shall not be construed to obligate any municipality to make any such conveyance or agreement.
Source. 1987, 322:1. 1992, 173:3, 4. 1993, 176:10. 1997, 266:4, eff. Jan. 1, 1998.

Whether or not 80:80 allows Town Meeting to place restrictions on the manner of sale of tax-deeded properties is a completely different question from whether Town Meeting amended Article 9 to authorize the selectmen to sell the tax-deeded properties by sealed bids only. I am glad that Chip has moved on and is no longer saying that the amendment did not happen.