Councilors Threaten Legal Action Over Contract Vote

Town Councilors Mark Osborne and Al Dimmock say they are considering legal action after the approval of a contract for the Derry Professional, Administrative and Technical Employees (PATE) by the Town Council on Feb. 18.

In a phone call the Friday after the meeting, Osborne said according to the Town Charter, the method of counting votes is not according to the majority of the votes cast, but the majority of the people sitting in the meeting. By those standards, he said, Phyllis Katsakiores’ abstention counted and the vote was 3-3, or a tie, and thus failed.

Osborne, who is an attorney, said if the vote is not overturned, he will take the issue to court.

Osborne’s memo to Acting Town Administrator Larry Budreau and Council Chairman Michael Fairbanks read, “Hi Mike and Larry, Please look at charter section 5.9 (B) Which calls for a non-appropriation measure to pass only if “adopted by a majority vote of those present.” Cross reference that provision with section 10.8(e): “A majority vote means a majority of those present and voting with a quorum of the body present.” Accordingly, with 6 Councilors sitting – 3 voted in favor of the contract; 2 voted no; 1 abstention. With only 3 of 6 Councilors voting in favor of the contract, that is not a majority of those present. Hence, the measure fails. The charter calls for a majority of those present (rather than for a majority of those voting). Robert’s Rules and our charter both speak to the difference between “majority present” and “majority voting.” Hence, I would suggest that the contract not be signed and if it is – it is void and illegal and non-binding. Or so it certainly seems. As has been pointed out to me ad nauseum I am not the town attorney. But, perhaps a legal opinion will be sought to explain to us what seems to be very clear language on how votes (are) defined under our charter.”

In a separate memo to Fairbanks, Osborne wrote, “Also I reread the charter objection provision of the charter (6.6). It clearly states that ‘on the first occasion that the question on adoption of a measure is put to the town council…’ The contract was not put before us on the issue of adoption at previous Feb. 4 meeting. Yes, the contract as a topic was on the agenda but a motion for its adoption was never made. Nor was a motion for the contract’s adoption ever discussed or debated for purposes of adoption or acceptance. Larry spoke of the contract’s highlights, but again, a vote, a proposed vote, or a debate on a motion to adopt was never had. Thus, the motion to accept or adopt the contract was never before us…. Hence, my charter objection was properly made, given that a ‘question of adoption’ was never before us at the Feb. 4 meeting, as alleged by some of our colleagues.

“Second,” he continued in his memo, “I would think it worth looking into to see if a Chairperson has jurisdiction to even rule on a charter objection. The charter is silent. Implicitly, he/she probably does. But, if we are going to look into the charter objection denial the first of which I have ever heard of we should inquire as to the issue of the Chair’s jurisdiction over what is an inherent and substantive privilege afforded to the Council’s members.”

In a phone interview Sunday night, Fairbanks said the matter was under investigation. “We are looking for clarification on the charter objection, and also on the constitutionality of the majority vote,” he said

Budreau said Monday morning, “I have at the request of the Chairman forwarded the questions to our town attorney. I am awaiting their response.”