Selectmen in the dark… Part II…Applying the brakes to the runaway government train!

Editor’s note: New Hampshire’s General Court has dutifully kept pace with the ever changing landscape of electronic communications. The proper conduct of our elected officials  has been clearly defined;

• RSA 49-D:4 Non-Interference by the Elected Body. – The elected body shall act in all matters as a body, and shall not seek individually to influence the official acts of the chief administrative officer, or any other official, or to direct or request, except in writing, the appointment of any person to, or his removal from, office; or to interfere in any way with the performance by such officers of their duties. Any member violating the provisions of this section, as determined through procedures established in the charter, shall forfeit his office. (read here)
• RSA 91-A:1 Preamble. – Openness in the conduct of public business is essential to a democratic society. The purpose of this chapter is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people.(read here)
• RSA 91-A:2-a Communications Outside Meetings. –
      I. Unless exempted from the definition of “meeting” under RSA 91-A:2, I, public bodies shall deliberate on matters over which they have supervision, control, jurisdiction, or advisory power only in meetings held pursuant to and in compliance with the provisions of RSA 91-A:2, II or III.
      II. Communications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1. (read here)
• “The elected body shall act in all matters as a body, and shall not seek individually to influence the official acts of the chief administrative officer, or any other official, or to direct or request, except in writing, the appointment of any person to, or his removal from, office; or to interfere in any way with the performance by such officers of their duties. Any member [who does so], as determined through procedures established in the charter, shall forfeit his office.” RSA 49-C:19 (city charters); RSA 49-D:4 (town charters).

  In other words, no single member of a governing body in a municipality with a charter has the authority to direct or interfere with the official activities of the chief executive officer of the municipality or other officials. Furthermore, it should be noted that even in towns without a charter, the selectmen are only authorized to act as a board by majority vote. RSA 41:8. Although there is no statute authorizing removal of a selectman for improper interference, the old saying that “one selectman cannot do anything” is still valid. Only the board may act.

  Christine Fillmore and David Connell are attorneys with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department. (read here)
  

PART II

Planning Board minutes indicate that on Wednesday, January 25, 2017, Selectmen Hopper and Fortner and several Planning Board members are concerned with this rather hastily assembled Zoning Ordinance change,

“The Chair raised a concern relative to the proposed zoning changes offered by Selectmen Osgood relative to the building inspector, a public hearing is scheduled for February 1. The change would involve two questions on the ballot and he believed it would be confusing to the voters and what would happen if both passed (like last year with Steve Forester’s petition). Mr.Fortner has a similar concern and noted the full Board of Selectmen have not fully discussed this matter. Ms. Hooper expressed similar concern along with Mr. Higginson concurred. Mr. Tirrell made a motion to cancel the proposed public hearing, seconded by Mr. Higginson, all in favor 4–0.”

The real problem on January 25, 2017, not to mention the lack of communication prior to the meeting is, Selectmen Osgood was never given authority to offer anything to the Planning Board as a selectmen!

The rest of the story;

On the night of January 3, 2017 at the BOS meeting,  the Town Administrator once again raised the code enforcement issue. The BOS takes the following action,

       “A motion was made by Chair Blomback to not proceed with interviewing and hiring a     building  inspector until there is further research from Selectman Osgood. Vice Chair Hooper seconded. Selectman Fortner amended the above motion to change the parameters of the board’s decision whether we move forward. No second. Motion fails. Original motion passed 3-2 (Fortner, Osgood).”

On the afternoon of January 17, 2017, at 3:21 pm, Town Administrator Trovato sends an email to Land Consultant Fougere 1-17-2017-trovato-fougere-email questioning the legitimacy of the changes because the submission dates may have passed.

• Note a response was sent from Mr. Fougere’s business email account, fougereplanning@comcast.net, to an email account entitled “Henniker Planner” at 4:24 pm. The text to that email was not available in the information sent to OHB. The contents of that email are unknown at this time.

On the night of January 17, 2017 the issue came before the BOS. (read here). During the meeting, despite the order from January 3rd to do only research and report back to the BOS, Selectmen Osgood hands out the drafts of the proposed Zoning Ordinance changes he had emailed the night before to Chairman Blomback, Ms. Trovato and Ms. Palmisano :

      “Selectman Osgood handed out a draft of revised zoning ordinance that allows for a full                        code enforcement system and then wrote one without code enforcement.” (linked minutes                   page 2, 2nd paragraph)

• 1-19-2017-fougere-osgood-scramble-email
• 1-21-2017-osgood-is-this-correct-email
• 1-25-2017-osgood-fougere-concerns-but-approve-email

all designed to fast track a zoning change (“offered by Selectmen Osgood” without selectboard approval. As noted by Select Board members Fortner and Hooper the BOS has not fully discussed this zoning change) to be placed onto the agenda of the Planning Board meeting scheduled for January 25, 2017 and to notice up  a Public Hearing before the complete Planning Board even deliberated.