Council Denies Petitions, Election in Same 4-3 Vote

In a brief but raucous meeting that saw three residents ejected and one receive a summons for showing her displeasure with the Town Council, councilors voted to ignore eight referendum petitions signed by hundreds of residents to reconsider budget cuts made earlier this year.

About 50 people filled the council chambers on Tuesday, July 28, and it wasn’t long after chair Thomas Cardon began speaking that they began showing their frustration.

In June eight referendum petitions were presented to the council in reaction to budget cuts the group made on May 19. Each petition sought to overturn a specific budget vote, including reductions made to police, fire and Public Works overtime; police, fire and Public Works staffing; closure of a fire station and elimination of the Human Resources Director position.

Upon receipt of the petitions the council voted to send them to the law firm Devine, Millimet and Branch to review their validity, and set aside up to $10,000 for an opinion. Though an initial opinion deemed the petitions valid, a second opinion received on July 24 was relied heavily on by the four councilors who voted to take no action on the petitions.

Though petitioners argued that the town charter justifies the petitions and forces the council to consider them or have a special election called, Cardon argued that wasn’t the case, and whether to consider them was entirely in the purview of the council.

Cardon said his initial forays in seeking an understanding of the petitions’ validity were met by confusion by everyone from the Attorney General’s office to the Secretary of State, and the town was urged to have a lawyer delve into the topic.

The argument for Cardon, citing the recent legal opinion, came down to whether voters were allowed to veto council budget decisions, a move that, he said, was denied by the same document that petitioners used to justify their referendums, the town charter.

The letter cites portions of the charter that give the council the responsibility to enact a budget, noting that the town council form of government takes voters out of having a say in final budget approval.

“If the Town Charter was intended to allow the voters to have final say over the budget, it would have adopted one of the alternative forms of Town government that provide for a Town Council with a budgetary town meeting or official ballot. The form of government adopted, a Town Council without a budgetary town meeting or official ballot, further establishes that the Town Council is responsible for the final approval of the Town budget,” read Cardon at the meeting.

“The New Hampshire Supreme Court previously held in the City of Claremont v. Craig case that a City Council has exclusive authority to adopt a budget and that a charter provision which attempts to require voter approval of the budget is invalid. I believe that the same principles apply here and that use of the referendum process to require voter approval of the Town budget or portions of the budget is similarly improper,” concluded Cardon.

Councilor Richard Tripp said he thinks the lawyer’s opinion was up for interpretation, as despite Cardon’s lengthy statements on the matter, he thinks the letter was not as one-sided as indicated.

“I read the same opinion and there were several times where Devine, Millimet said, ‘An argument can be made…’ or ‘Based on these provisions, an argument can be made…’ and the last thing that the lawyer had to say, I believe, was, ‘Based upon this the result of any litigation is unclear,’” said Tripp. “So the lawyer did say that if you were to interpret his opinion in one way that the town council could ignore the referendum petitions but he also said, I believe, that it was unclear as to whether that was a direction the council should take, as it’s not in his mind definitely defined in that way in the state laws or the town charter.”

“No,” said councilor David Fischer, “I think you’ve summarized the key points and thank you very much.”

Councilor Mark Osborne said he agreed with Tripp that there was more unknown about the petitions than was known, including where the money would come from if the petitions won the day. Would it require a supplemental tax increase? Osborne asked, questioning whether the state would even allow it.

“It happens all the time,” said resident Gordon Graham from the audience. And then Cardon’s gavel began to fall.

“I’m not going to allow this in the meeting,” said Cardon. “No.”

“But you need some information,” said Graham. Both Graham and Osborne are attorneys.

No public comment was allowed in the meeting.

“You’re pathetic,” said one resident, loud enough for the council to hear. Cardon immediately asked him to leave and directed police to enforce that direction.

Osborne said the work of the petitions considered that night could be undone by subsequent petitions ad nauseam and he was not comfortable in setting such a precedent.

“Such an approach to the budget and running town council policy is more akin to the rise and fall of banana republics than it is to representative democracy or representative town government,” said Osborne.

When Osborne was interrupted in his talk, he echoed residents’ comments, quipping ironically that everyone had the right of free speech except for the councilors.

Osborne argued further that the remedy for residents upset with the council’s decision was not in referendum petitions but in amending the charter to allow for petitions to be recognized.

Councilor Al Dimmock said he thinks that ignoring the petitions was well within the rights of the council and if residents disagreed, they could come after them with lawyers.

Councilor Joshua Bourdon said he had been hearing for months from councilors who voted for the cuts that the majority of townspeople agree with them. If such is the case, he said, those councilors should welcome a town vote on the issue.

“If we follow that logic and it goes to a vote, then the tax cuts would be upheld, you guys would look like heroes, be vindicated, and it would be put to bed. But most importantly the voters, the people, would have the chance to determine their future,” said Bourdon.

His comments were met with applause.

Bourdon noted that if the council were overruled in its budget decisions by a special election, he found it questionable that the council would then allow for another petition to repeal the public will.

Bourdon also raised previously aired concerns about the council’s decision to eliminate the Human Resources (HR) director/assistant town administrator position, seeking an amendment to Cardon’s motion to at least allow for that position to be funded.

“I would really ask you to be reasonable and responsible on one thing,” said Bourdon in his request.

Bourdon went to argue that the three most important positions in any business are CEO (chief executive officer, effectively the town administrator), the CFO (chief financial officer) and the human resources director, pointing out that all three of these positions are currently held by Sue Hickey.

The councilor raised concerns about the lack of checks and balances and robust debate over decisions that can happen when so much is on one person’s plate.

“Think about the possible scenarios that could play out with having one person in charge of all of that. It doesn’t seem fair. It doesn’t seem responsible. It feels like we’re putting the Town of Derry, which is 33,000 strong, at risk,” said Bourdon.

Bourdon’s amendment ultimately failed 3-4, with himself, Councilor Phyllis Katsakiores and Tripp in favor.

Immediately following that vote, a vote to take no action on the petitions fell along the same lines.

After the vote was made and the council immediately moved to adjourn, tempers flared in the audience, especially when Cardon denied the need to set a date for a special election on the petitions.

“What’s the charter for if we’re not allowed to speak our minds and gather enough signatures to have you listen to us!” yelled an irate Jenna Paradis from the audience.

Cardon asked an officer immediately to escort Paradis out of the room.

“This is disgraceful!” she called as she left.

Another resident called out, “Tyrant, tyrant, tyrant.”

Karen Blandford-Anderson said that the people had a right to be heard and that it was not right for the council to attempt to shut down the meeting without listening to the public.

“She has a right to be heard. We have a right to be heard. I have a right to be heard. You will have to take me physically out of here.

Until this meeting is adjourned I have the right to be here,” said Blandford-Andersen, folding her arms and standing resolutely. “If you’re in the right, let us vote.”

Ultimately she was physically escorted out of the room and a summons was issued to her for disorderly conduct.

After the meeting Blandford-Anderson said she did not go into the meeting with plans to engage in civil disobedience but that after months of such actions taken by the council, her frustration had come to a head. But she added that she did not act heedlessly or without control and thinks she did the right thing.