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Author Topic: Letter from the Town Attorney - 7/23/2010  (Read 926 times)
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« on: July 27, 2010, 07:37:46 PM »

Below is the letter submitted by the Town Attorney answering several question that the Charter Commission asked

Please respond to the Concord office

July 23, 2010

Charter Commission
Town of Londonderry
268B Mammoth Rd.
Londonderry, NH 03053

Dear Commissioners:

This letter is in response to the request of Brian Farmer that I provide guidance to the Commission relative to a series of questions concerning establishing a quorum requirement for the deliberative session of the  Town Meeting, the effect of the March Town Meeting vote, establishing the  Commission, establishing dates for voting, crafting of the Charter Commission’s report, the establishment of a budget committee, and restricting and controlling the deliberative session and the power of the moderator.

The Town of Londonderry operates under a Town Council/Town Manager form of government with a budgetary Town Meeting.  See RSA 49-D:3, I and II.  In March of 2010, the voters established a Charter Commission “for the sole purpose of establishing official ballot voting under the current form of government.”  Thus, the Commission’s portfolio is limited.

The Supreme Court has repeatedly stated that “t is a long established principle under our law that towns are but subdivisions of the State and have only those powers the State grants to them.”  Girard v. Allenstown, 121 N.H. 268, 270 (1981).  RSA Chapter 49-B does not grant any broader authority.  Id. at 272.  As the Supreme Court observed in the case of City of Manchester School District v. City of Manchester, 150 N.H. 664, 667 (2004):

The current versions of the home rule statutes were adopted in 1991.  Together these statutes, RSA Chapters 49-B, 49-C and 49-D, constitute a detailed, comprehensive scheme for the establishment and operation of local government.  RSA Chapter 49-B gives municipalities explicit authority to choose a form of government.  Their choices, however, are limited….RSA 49-B:2, II (2003) limits a town’s choice to the forms of government outlined in RSA Chapter 49-D.  Similarly, the structure of the form of government selected is dictated by RSA Chapters 49-C and 49-D.
(citations omitted).
Given the foregoing, the municipality must find in the general statutes specific authorization to establish a quorum requirement in the general statutes.  RSA 49-D:3, II-a provides for “official ballot” town meetings, and states, in pertinent part as follows:
When an official ballot town meeting is included in any charter, the provisions of general law relative to town meetings, their warning, the right for petitioned articles at such meetings and the conduct at such meetings shall apply to the official ballot and open town meeting in all respects.

There is nothing in the provisions of the general law that provides for a quorum at a town meeting.  See, e.g., RSA Chapters 39 and 40.  This observation is reinforced by reference to RSA Chapter 31:5, governing appropriations at special meetings.  That statute does establish a “quorum,” by requiring a vote of at least 50% of the voters who are on the checklist of the town in order to raise additional funds, subject to an exception not pertinent here.  The import of this is that the Legislature certainly knew how to establish a quorum requirement had it intended such for an annual meeting.  I cannot identify any authority for the Commission to establish a quorum requirement for the deliberative session of the annual town meeting.
I am not in a position to say how the Londonderry School District came to enact a quorum requirement for its deliberative session.  In this case, the Town’s Charter is governed by RSA Chapter 49-D, which does establish certain limits on the discretion of the Town.  Perhaps there is different legislative authority for a school district.
It follows that the Charter Commission may not impose limitations upon the powers of the deliberative session, moderator, contingent articles, petitioned articles, new spending added on the floor of the deliberative session, one time expenditures, “recommendations” of the deliberative session, and restricting reconsideration.  It is instructive at this point to direct your attention to the case of Grant v. Town of Barrington, 156 N.H. 807 (2008).  In that case, the plaintiff challenged an amendment at the deliberative session of a town meeting governed by the provisions of RSA 40:13, that eliminated all of the language following the words “to see”.  The court, observing that “amendment of warrant articles at a deliberative session is authorized,” and upheld the amendment as within the authority of the town meeting.  Nothing in RSA 40:13 withdrew the authority of the deliberative session of the town meeting.  Given the language of RSA 49-D:3, II-a, one is compelled to conclude that the existing law governing the powers of a town meeting and moderator, as well as those laws governing warrant articles, are controlling.  Of course, placing any budgetary article on the ballot is well within the contemplated scope of charter amendments which may be recommended by the Commission.

The March 2010 vote did nothing more than establish the Charter Commission.  It did not “negate the entire Town Charter.”  It did not establish “official ballot voting.”  Again, it merely established the Commission.  It is the role of the Commission to present amendments “which the Commission intends shall be submitted to the voters.”  RSA 49-B:4, V.  In other words, the vote merely established the procedure by which the citizens would have the opportunity to consider proposed amendments.  It does not compel the Commission to propose any particular amendment, nor does it operate to alter the charter in any way. 
The authority under which the Charter Commission is operating is the vote of the citizens to establish the Charter Commission to consider “establishing official ballot voting under the current form of government.”  As this necessarily involves two sessions of the Town Meeting, a deliberative session and a subsequent date for official ballot voting, it may be necessary to alter the dates for consideration of the budget and presentation to the citizens.  Consequently, it is within the power of the Charter Commission to move the date for voting.
You have asked whether a report of the Commission is required in the event of a “no” vote.  RSA 49-B:4, V provides that “the Charter Commission shall submit to the municipal officers its final report.”  The word “shall” is mandatory, and therefore a report is required.  The statute allows for a minority report, which “shall not exceed 1,000 words.”  The “minority report” is to be compiled by the “minority.”  The final report “shall include the full text and explanation of the proposed new charter or charter revision, such comments as the Commission deems desirable, an indication of the major differences between any current and proposed charters and a written opinion by an attorney admitted to the Bar of this State that the proposed charter or charter revision is not in conflict with the constitution or the general laws.” 
Finally, you have asked whether the Charter Commission has the authority to provide language that establishes a budget committee.  I am not persuaded that the establishment of a budget committee is necessary or implied in order to establish official ballot voting.
I trust that the foregoing is responsive to your inquiries.  I look forward to meeting with you on the evening of July 26th.

Very truly yours,
Barton L. Mayer

Glenn Douglas
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