Saturday, February 7, 2015

Budget /Warrant Hearing Highlights

The full warrant can be found here on the Town website. Please remember that there are also four Zoning ordinance amendments which will be voted on on ballot day, Tuesday March 10th. Please note that the vote totals are my recollection of the events based upon my notes. The official tallies will appear on the final warrant and will be in the BoS minutes.

Article 6 - relative to the collective bargaining agreement between the Town and the Moultonborough Police Benevolent Association. The vote is to approve the cost items in the agreement. The estimated increase in the budget for  FY 2015 will be $8,250 and $11,000 in FY 2016. The agreement was ratified by the union and the BoS.
Recommended by the BoS 5-0. The ABC abstained as they have not had an opportunity to review the agreement and will make their recommendation at a later date,

Article 9- To see if the Town will vote to endorse the report of the Village Vision Committee.
This one took some time as the word " endorse" became a sticking point. Accept, receive? The word endorse was purposeful as the original intent in the committee formation was to present the end product to Town meeting to achieve consensus on the future direction for the village. Since the final report is not yet completed, no vote was taken by the BoS or ABC.

Article 10- This is a list of 21 ordinances that were previously adopted by the Selectboard over the years, but may not have been properly adopted. To correct this, all 21 are going to Town meeting in one warrant article for legislative body approval.
Recommended by the BoS 5-0 and the ABC 6-0.

Article 13- A list of capital purchases totaling $489,000. I made a request to move the two items not recommended by the CIPC ( $15,000 for engineering for repair of the Playground Drive softball field  and $20,000 for a water treatment plan for the Highway Garage)  to separate warrant articles. After much discussion it was agreed to move the two items to one new article temporarily called Article 13A. Article 13 was recommended by the BoS 5-0 and the ABC 6-0. Article 13A was recommended by the BoS 5-0 and the ABC 6-0.

Article 29- Citizen's petition eliminating the position of Town Administrator. A long discussion on this. BoS Chair Jon Tolman read a statement of opinion from Town Counsel Peter Minkow :My position is that since town administrator is not a statutory position, but rather is one created by the selectmen, it is only the selectmen who can eliminate the position.  Town meeting could, of course, reduce the budget by the amount used to compensate the town administrator, but that is the only leverage that I believe it has.  And, of course, the selectmen could cut that money from another place in the budget and continue to pay the TA." 
There was some discussion as to when this position as created  and by whom and Selectmen Russ Wakefield produced a document that indicated that the position was created at Town meeting in 1989:
ARTICLE 29
"On a motion of James Sutherland 2nd by James Scott voted that the Selectmen be directed to hire a professional Town Administrator who shall work full-time under their direction ; and that a citizens committee be appointed by the Selectmen to assist in the search, selection and installation of such person, being guided by a formal job description and qualifications document agreed to by the Selectmen and Committee, with a target  date of June 1989.”
ARTICLE 30
"On a motion of Clark Myers 2nd by James Scott voted to raise and appropriate a sum of money not to exceed  Thirty thousand ($30,000.00) dollars for hiring of the above administrator for 1989.  This article was voted in the affirmative."
 These two articles were voted in the affirmative.  As you will note, Mr. Sutherland specifically asked the legislative body to approve the hiring of a Town Administrator.  As (1) the Town Administrator is not a statutory position, and (2) the creation of a Town Administrator was a legislative creation at the 1989 Town Meeting, the current Article 29 is a proper subject for approval by the legislative body at the 2015 Town Meeting."
As such the lead petitioner's argued that the legislative body could indeed eliminate the position as they created it.
The BoS voted 0-4 to not recommend , one abstention ( myself as I believe it to be a personnel matter ). The ABC voted 0-5 against with one not casting a vote. 

Article 30- Proposes $85,000 for for engineering, acquisition of rights of way or easements, legal costs, preparation of plans and specifications, and bidding for the purpose of sidewalk construction in Moultonborough Village. A lot of discussion here also. Was this consistent with the Village Vision report? There were concerns that the sidewalks were premature and that is was like the cart leading the horse. If we expend money on this project will we still be eligible for grant money? 
The project was described in the article as follows: 'The intent is to provide a sidewalk along Route 25 within the R.O.W. as possible, with a crosswalk located approximately halfway between the library and the Central School, generally outlined as Phase 1 (omitting segments S1A and S2A) of the Village Sidewalk Study dated Nov. 2013, and further to authorize the Select Board to negotiate, execute, deliver and accept such deed and other documents as it deems reasonable, appropriate and in the best interests of the town to  effectuate the purpose of this article. "
In the end, the BoS voted 4-1( Russ Wakefield was the no vote)  to recommend, all yes votes being contingent on the outcome of the Village Vision plan being consistent with what is being proposed. The VVC draft does indicate sidewalks as a high priority item. The ABC vote was split 3-3. 
I would add that I was instrumental in forming the Village Vision committee with the intent that we could achieve consensus on the future direction of the village and to even define what the village boundaries may be. The committee worked very hard and left no stone unturned in it's work. I was committed to support the outcome while understanding that this is just a vision and not a mandate or work plan to accomplish all things in the report. The VC report will ultimately become a part of  the new Master Plan which also is not a mandate, just a guiding light to how we see things in the next 5-10 years. Breaking the elements down in smaller chunks and getting it in front of the legislative body is the best way in my opinion to conclude these divisive issues. As a BoS member and a member of the CIPC, I remained concerned that expensive citizen petitions that are outside of the normal capital budget process and thus not subject to the same stringent vetting that other capital projects are subject too, is not in the best interest of all taxpayers who ultimately pay the bills. I always sit at every public meeting with the thought that this is not my money and I tryto remember that in making any spending decisions. Its a tough balance at times.

Article  31- To see if the Town of Moultonborough will vote to raise and appropriate the sum of Five Thousand  Dollars ($5,000) for the annual support of services provided to the citizens of this community by the Central New Hampshire VNA & Hospice. Central New Hampshire VNA & Hospice agency has been serving the Town Residents for many years, and the Town has consistently supported Central New Hampshire VNA & Hospice. 
There was some discussion of the issue of competition with the Lakes Region VNA and while yes they are two separate entities and business models. both deserve our support as they provide vital services to our community.
The BoS voted 5-0 to recommend. The ABC voted 4-2 to recommend.











17 comments:

Joe Cormier/jcormier2@myfairpoint.net said...

RE: Article 29

I can't believe the town attorney's "legal opinion". The town should demand its money back.

I'm contemplating filing a complaint with the NH Bar, as a MoBo citizen, for incompetence.

1) Precisely because, the TA is not a statutory position, the TA job title can be eliminated.

2) The legislative body "directed" the BoS to hire a TA at the 1989 Town meeting, not the selectmen.

The legislative body giveth ... the legislative body taketh away.

The legislative body also "hires" the BoS ... via elections.

The selectmen did not create the TA spot as counsel states.

The TA and BoS are subject to the TA contract, and Contract Law.

Municipal Law trumps Contract Law.

The legislative body ... us... at the town meeting create "town law".

http://www.quora.com/Can-legislation-rewrite-the-rules-that-govern-contract-law

Funding has nothing to do with issue of getting rid of the "job title" ... not "the TA". There is a paramount legal distinction between getting rid of the TA and getting rid of the job title.

The BoS have been informed what their options are, by other parties familiar with NH law.

That is, this incumbent BoS, of which 40% will be "gone" March 10th, when we elect two new BoS members.

March 14th the legislative body will vote on Article 29, subject to floor amendments.

That gives the NEW BoS @ 17 days to vote on the extant TA contract, if the old BoS has not. This is the EXTANT contract, for all you lawyers.

Section 1. (b)
The TA contract requires a 4-1 vote not to extend. It states if TA is not informed by March 31st to not extend, then a one year extension.

The contract is "silent" on how many votes to extend, from the five (5) member BoS.

Section 1. (a)

" The services provided by the Administrator shall continue with the effective date as set forth above and shall end on March 31, 2014 unless extended or terminated as set forth herein."

Ratio decidendi


PS: It was not my petition, but it could have been written:

"... the Selectmen be directed to fire ..."

It was created at the 1989 town meeting by:

"... the Selectmen be directed to hire ..."

The legislative body would be exercising its right.










Anonymous said...

Appreciate Mr. Cormier's comment regarding Warrant Article 29.

Weak Prop. said...

Thank you JOE for putting the time in on this. For the same reasons that we requested a new town engineer, we are negelegent in not pushing for a new Town attourney. Over the past few years our current attourney has been the T A crutch on demand. This has not been good for the town.

Anonymous said...

Article 30 seems out of order in that the Village Vison Committtee report should be first. Comments about having major capital projects reviewed by the CIPC makes sense, I have read the CIPC report and it is thorough and seems to represent a lot of work by volunteers.

Why is it thet the 2 people submitting this warrant article are the same ones who avoided the CIPC last year? They must think that the rules don't apply to them.

One Small Step... said...

The meeting had one selectman working to maintain the CIPC voice in town spending. Thank you Paul. In years past, it was all in the same bucket, the recco with the non recco.. I E. Spend $ 489,000. YES. NO.
Now we may vote separately on purchases not recco by the CIPC. One small step for mankind...

Town Hall Junkie. said...

Article 13 A was the two UN-bundled expenses the CIPC did not endorse....one for " not having enough info supplied to make a judgement ".
The $ 15,000 for " engineering " is the beginning of playground drive softball diamond rebuild....total cost $ 350,000 including night lighting at $ 85,000. Main issue is right field is a little short. Main logic seem that we spent that on the soccer field, let's do that for softball.
The other purchase involves a reverse osmosis water filter for Hwy garage. The BOS asked the T A and Hwy to do a complete study here, and perhaps find ways to abate salt pollution. This has merit for the environment.

Town Hall Junkie said...

Article 30...A citizens petition...popping up again, as last year it was Turned down by one vote.This Phase one total cost est is $ 850,000. Can't say if phase two is both sides of the road...this desperate act has the kids walking along side the tractor trailers from the bottling plant. This is the easy way out, but not the right way.
I could not begin to do as complete a review of article 30 as the Blogmaster has done....it is a masterpiece, worth reading many times, for the many cautions.

Anonymous said...

I expect all the candidates will be at the Lion's Club, March 1 @7pm to answer questions about the warrant and issues in general.

I didn't see Candidates Night listed on the Town Calendar, expect it's an oversight. In light of all the storms of late is there a snow date, just in case?

Eric Taussig said...

The 50 petitioners do not disagree with Mr. Punturieri that this matter is a Board of Selectmen (BoS) personnel matter. The problem is that the BoS has declined to address this issue for a good number years and has shown no inclination to do so this year. Virtually all of the petitioners would be delighted to vote against this proposal at the March 14th Town Meeting if only the BoS appropriately dealt with this matter before then. The petitioners very reluctantly filed the petition only after giving the Board considerable notice that a failure to act would result in the petition being filed.

It should be made clear to readers of the Blog that it is not the intent of the petitioners to burden the BoS with additional work nor to save several hundred thousand dollars from the budget by eliminating the Town Administrator position.

In the interest of full disclosure and transparency, I am attaching a copy of the statement read into the record at Thursday’s hearing on behalf of the petitioners.

Explanation of Reasons for the Petition to Eliminate the position of Town Administrator

“Last year after the unsuccessful attempt to remove two members of the Planning Board and a variety of other actions inspired by the TA that in the opinion of many residents exceeded his authority and totally lacked transparency, a petition with in excess of 85 signatures was submitted to the Board of Selectmen requesting that the Town Administrator’s contract not be renewed. Despite the fact that there was an election pending, the Select Board totally ignored the petition and without any discussion and public input whatsoever in a lame duck session, voted to renew the contract before the newly elected Select Board was even seated.

Let me make it clear, the drafters and signers of this Petition do not want to cause administrative turmoil nor increase the workload of selectmen. However, after last year’s total disregard of the petition by this Board, the citizens have concluded that there is no alternative to this warrant article.

As the Selectmen totally ignored last year’s petition, the signers of the petition are requesting that this Select Board in a timely fashion address the issue before the Town Meeting Day and terminate the contract of the incumbent Town Administrator. If that action is taken I and most of the signers of the petition will campaign against its adoption and the issue will be moot.
However, if the Board takes no action, the signers and other proponents of this article will ask voters to eliminate the position of Town Administrator, effective May 1, 2015. The reason for the delay after the Town Meeting in the effective date is to allow for a short transition period to enable the Select Board to efficiently assume the responsibilities of the Town Administrator as the result of the vote on the warrant article won’t be known until the sometime on March 14.
I want to reiterate that the drafters and signers don’t necessarily want to see the Town Administrator’s position eliminated nor to punish the Select Board by getting rid of the position to save money and create more work, but rather to get the Board to move expeditiously in announcing the “retirement” of the incumbent and the appointment of a search for a non-divisive replacement.

For the benefit of the assembled audience, we want you to know that on Thursday, January 21, a week prior to filing the petition, the Select Board was provided with a draft copy at their last meeting. It was the hope of the petitioners that the Board would address this issue.”

Eric Taussig said...

During the discussion of Article 29, the Chair read a legal opinion of Town Counsel, Peter Minkow. As a result, I am attaching the string of emails between myself and Mr. Minkow.

From: Eric Taussig [mailto:eric@erictaussig.com] On Behalf Of Eric Taussig
Sent: Friday, February 06, 2015 3:56 PM
To: Peter Minkow
Cc: jonathantolman@msn.com
Subject: Your Opinion on Draft Warrant Article 29

Peter,

Jon Tolman read your opinion to the public on draft Article 29 at last night’s hearing on the Town Warrant. He was kind enough to provide me with a copy of your opinion. I reviewed it and will not get into a discussion of a statutory position as the Town Administrator is not a statutory position. After Jon read your opinion, Russ Wakefield made the hearing attendees aware that it was in 1989 that the Town Administrator position was authorized and approved at the Town Meeting by the legislative body. This afternoon I stopped by the Town Clerk’s Office and Barbara provided me with certified copy of the minutes of the 1989 Town Meeting. The relevant resolutions, 29 and 30 of the 1989 Town Warrant approved by the voters, are set forth below:

ARTICLE 29

"On a motion of James Sutherland 2nd by James Scott voted that the Selectmen be directed to hire a professional Town Administrator who shall work full-time under their direction ; and that a citizens committee be appointed by the Selectmen to assist in the search, selection and installation of such person, being guided by a formal job description and qualifications document agreed to by the Selectmen and Committee, with a target date of June 1989.”

ARTICLE 30

"On a motion of Clark Myers 2nd by James Scott voted to raise and appropriatea sum of money not to exceed Thirty thousand ($30,000.00) dollars for hiring of the above administrator for 1989. This article was voted in the affirmative."

These two articles were voted in the affirmative. As you will note, Mr. Sutherland specifically asked the legislative body to approve the hiring of a Town Administrator. As (1) the Town Administrator is not a statutory position, and (2) the creation of a Town Administrator was a legislative creation at the 1989 Town Meeting, the current Article 29 is a proper subject for approval by the legislative body at the 2015 Town Meeting.

As you may know, most if not all of the 50 signers of the 2015 Article 29 petition would likely vote against it if the Select Board takes appropriate action before the March 14 Town Meeting. A copy of the statement I read at last nights meeting is attached for your information as well as a scan of the relevant excerpt from the certified minutes of the 1989 Town meeting.

I would appreciate if you would review this e-mail and the attachments. I would expect that after your review of the 1989 legislative establishment of the Town Administrator, you would agree that your opinion read by Mr. Tolman to the other Select Board members and attendees at the public hearing was erroneous and ask you to advise Mr. Tolman to correct the record in this matter.

Thanks and regards,

Eric


Eric Taussig
Law Office of Eric Taussig

On Feb 6, 2015, at 4:38 PM, Peter J. Minkow wrote:

Thank you Eric, I will look at it again. You do realize that Carter has a contract which has to be either terminated or renewed prior to town meeting. To the extent that the terms of any contract conflict with the language of the warrant article, the contract will take priority even if the article is legal.

Peter

Peter J. Minkow, Esq.
Minkow & Mahoney Mullen, P.A.


From: Eric Taussig February 7, 2015 at 9:04 am
To: Peter Minkow
Re. Your Opinion on Draft Warrant Article 29

Peter,

I will await your review. I should state that I do not share your view that a contract between two private parties (the Board and Town Administrator) can supersede state and local law.

Regards,

Eric

Eric Taussig
Law Office of Eric Taussig

Moultonboro Blogger said...

Snow date is March 8th

Joe Cormier/jcormier2@myfairpoint.net said...

Why doesn't the town calendar show the Gym meeting, Monday the 9th, two days from now, at 3:00PM?

Where's the Gym on the town warrant?

Transparency my *ss!

Meeting notice:

http://www.moultonborough.org/Pages/MoultonboroughNH_BOSAgenda/2015bosagenda/02-09-2015.pdf

Town calendar:

http://www.moultonborough.org/Pages/MoultonboroughNH_MeetingsCal/

Why isn't the candidates' night on the town calendar.

Is it because March 1st or March 8th are Sundays? Disturb too many
Hallelujahs!

http://www.godtube.com/watch/?v=0E02FMNU

It 's OK Russ ... with a grain of salt!

Before stones are thrown ...

For the record, I spent my first two years of high school at a Roman Catholic seminary, studying to be a priest. Obviously, not my calling. Of the 72 of us in my class, one (1),my best friend, Danny, became Father Dan.

Ya I know ... shocks the begeezus out of me too!











Anonymous said...

I'm still not clear, just more confused. The selectmen can't do the everyday job of the TA. If the leg body votes to approve this and i sur hope they dont, whats to stop them from renewing Carter's contract and jsut keeping him on? Makes no sense to me. Lawyers!

Joe Cormier/jcormier2@myfairpoint.net said...

It is legal ... and you should hope the BoS think this through ... very carefully!

The core article is to eliminate the TA job title. It was created by the, 1989 town meeting, not the selectmen, and can be eliminated by this 2015 town meeting.

If there is no TA title, there can be no contract between a TA and the Selectmen.

Also:
"A town manager cannot be elected because the statute provides that the selectmen make the appointment. RSA 37:2. A town administrator may be appointed or elected pursuant to RSA 669:17, IX which allows for the election of any other officers the town may judge necessary for managing its affairs. The most common way to fill the position of town administrator is by appointment by the selectmen."

But not if the legislative body has eliminated the TA job title.

Additionally:

"... a town administrator, who is an employee “at will" and who may be removed with or without notice or cause. An important caveat: while New Hampshire is an “at will" state, employment contracts and personnel policies often contain provisions that require the employer to take certain steps before terminating an employee."

https://www.nhmunicipal.org/TownAndCity/Article/248

Amendments will probably be made to the 2015 Article 29, as written. The core of the article, eliminating the job title, cannot be legally changed, and I'm sure the Town Moderator will monitor.

However, personally, I, also, don't want the BoS to be burdened with more work. Most of the time consuming work is the budget process.

The town has other administrative staff that do a great job. They are probably doing "the work" now. You just may not be aware of it.

Amend the 2015 Article 29 (not the 1989 Article 29) by striking the reference to the "Selectmen" and substituting an "Official Budget Committee". They, statutorily, 3 to 12 members, would be the legal presenters of the town budget, not the BoS. The present ABC and CIPC members could be part of the Official Budget Committee. Actually, eliminate the present ABC and CIPC and move to the Official Budget Committee and let them all work together. They are, presently, advisory only and have no legal authority. An Official Budget Committee has legal standing.

Complaints about all the work these folks do, and the BoS don't follow, would go away. Legally, the Official Budget Committee comes up with the budget, not the Selectmen.

Other amendments like severance pay, effective dates, etc. could/would be legal amendments to the 2015 Article.

I'm not an attorney. I've been certified as a paralegal for many years. I was accepted at a law school back in the early 80's, but stayed at Wang Labs., where I was in senior management.

I give no legal advice, nor should anyone that is not an attorney ... that is illegal! I give my opinion, protected by the U.S. Constitution.

RE:
UPL, Unlawful Practice of Law

https://www.nhbar.org/publications/archives/display-journal-issue.asp?id=149

NH Court Rule 5.5

http://www.courts.state.nh.us/rules/pcon/pcon-5_5.htm

I would point out that one of the most successful legal advocates,
was not an attorney.

http://www.nhdcyf.info/practice/



Taxpayer & Voter said...

While I don't object to an "Official Budget Committee" I am not in favor of eliminating the CIPC. As a taxpayer I value the dedication and expertise CIPC members bring to the table. The CIPC and the ABC are two valuable committees. We need them both.

Stick to the facts said...

To anonymous, 5:29pm,

No one said 85 signatures on a petition represents the whole town. As for the Selectmen expected to act immediately, the issue has been festering for years. A petition was presented to the Selectmen in 2013, asking for Mr. Terenzini's removal. The petition was not addressed by the Selectmen.

This petition is a Warrant Article and will be addressed by the voters at Town Meeting, by secret ballot, unless the Selectmen settle the issue before meeting day.

Sidewalk costs have a direction impact on the tax rate. It's higher taxes most object to, especially if the plan is not well thought out.

Sidewalks are being addressed in the village plan. Let the Village Vision Committee finish the study. Let's not put the cart before the horse.

Pepetiitiion signature soliciter said...

As a soliciter in collecting signatures for Article 29, the elimination of the Town Administrator, I can tell sidewalk advocates that getting signatures for the TA petition was much harder than any other I have worked on as many individuals are concerned about retribution by advocates for the TA if they sign.

To compare the two petitions and the ease of collecting signatures is like comparing apples and oranges.

As for sidewalks, I understand that if the petitioners would do this through the Village Vision approach, the Town Planner might secure federal funding to ease our tax burden.