Town Council Appeals Court Decision to Hold Election

The Derry Town Council voted to appeal a judge’s decision to let residents decide on eight referendum petitions regarding the May budget vote.

In a ruling after the Sept. 9 hearing on the petitions, Superior Court Judge David Anderson stated that the petitions were valid and the referendum process should be followed. But in a special meeting called for Sept. 17, the Council voted 5-2 to appeal the ruling.

The decision to appeal came once again amid chairman Tom Cardon’s request for police to remove residents from the meeting.

Cardon began the meeting by saying that in his mind there were two issues. “One is the appeals process,” he said. “The attorney says we have the right to appeal.”

The other issue is the election, he said, noting, “The DRA’s (Department of Revenue Administration’s) absolute deadline for our paperwork is Nov. 2.” For the special election, he said the town must notice it in newspapers for seven days, and the checklist needs to close 10 days before the election.

Cardon made a motion to appeal the judge’s Sept. 14 decision, followed by murmurs of protest from the audience.

Cardon opened the motion for discussion by the Council, and Richard Tripp said, “I don’t have anything to say. It doesn’t matter.”

To more rumbles from the audience, Cardon wielded his gavel and said there was no public input.

“Election requirements can be waived,” one woman said.

“I don’t want to ask you to leave,” Cardon said. But the woman continued to talk and he said, “Would a police officer please remove her.”

“You’re afraid of losing,” the woman charged as she was escorted out.

The Council returned to discussion and David Fischer said, “We have been involved in this process for quite some time. We made our decisions in the best interests of the community. We have the right to appeal, just as anyone else has rights. People should honor and respect that.”

Fischer continued, “Derry has a high tax rate and I understand the safety concerns. I would never support anything that affected public safety.” Instead, he said, the cuts were aimed at helping the departments run “more efficiently and more effectively.”

If the Supreme Court decides in the appeal that Derry should have the election, Fischer said, “Then so be it.”

The audience members began to object and Cardon, saying, “That’s very rude,” gaveled them again.

Councilor Phyllis Katsakiores observed that the cuts, which began as cost-saving measures, have sparked a controversy that has cost the town money. She asked Acting Town Administrator Susan Hickey to provide the Council with the cost of legal fees, police presence and other expenditures associated with the petition process.

In response to a question from the Nutfield News, Hickey said the total amount spent in legal defense to date is $11,756.43.

According to Hickey, the total cost on police details for meetings so far is $1,967.

Councilor Al Dimmock said about the audience, “They talk about injustice. If there’s any injustice here, it’s to the taxpayer. We have the right to appeal under the Constitution.”

Councilor Joshua Bourdon observed that he had not seen the attorney’s opinion on the right to appeal. “How can I prepare for a meeting if I don’t see the material?” he asked.

“You’ve never requested it,” Cardon responded.

Another person complained loudly and Cardon had the individual escorted out.

Councilor Mark Osborne told Bourdon, “The attorney told every member of the Council that he would be happy to get phone calls from any member of the Council.”

Bourdon told the four Councilors who supported the cuts, “If you believe this logic, then it tells me you have the vote. Allowing the election to take place would clear the air, and you would come out looking great.

“It would be a referendum in your favor,” Bourdon said. “That’s so much more empowering.”

Osborne reminded the Council and audience that in 2013, $500,000 worth of cuts were made, “and some Councilors did not vote for them.” In 2014 the then-Council effected $400,000 in cuts, “and some Councilors didn’t vote for a single one of them.” In 2015 the $1.21 cut resulted in $1.6 million,” and some Councilors did not propose a single cut. Not a position, a program or a paper clip.”

Osborne said he was in favor of safety, “but ‘safety’ is not synonymous with a blank check.”

Met with an outburst from an audience member, Cardon had him escorted out.

Cardon said of the Sept. 17 meeting, “I am disgusted with the behavior of the people who showed up. People say they want a ‘better Derry,’ and then they behave like that on camera. That’s not what a ‘better Derry’ is.”

The final vote was Tripp, Fischer, Dimmock, Osborne and Cardon in favor, and Katsakiores and Bourdon opposed.

In a phone interview Friday, Tripp said voting for the appeal was part of his strategy. “I voted so I could be on the prevailing side, so I could ask for a motion to reconsider,” he said.

Like Cardon, Tripp is worried about timing. “If we delay past the Department of Revenue Administration’s deadline for setting the tax rate, we’ll have last year’s tax rate minus the $1.21,” he said. “It will be set in concrete.”

And the town, in Tripp’s words, is “screwed.”

The Petitions

Three residents, Brian Chirichiello, Neil Wetherbee and Jenna Paradise, challenged the majority of the Council’s decision July 28 not to take action on eight referendum petitions asking the Council to overturn votes on eight budget items. On Wednesday, Sept. 9, Anderson heard testimony from attorneys for both sides.

At issue are eight budget cuts voted for on May 19 by Osborne, Dimmock, Fischer and Cardon. The four Councilors voted in the majority to approve cuts to police personnel, cuts to police overtime, cuts to fire personnel, cuts to fire overtime, cuts to both public works personnel and overtime, elimination of the Human Resources Director position and closing of one of the town’s four fire stations. The cuts resulted in a $1.21 decrease in the tax rate, but many residents objected, citing essential services that were being reduced.

According to the Town Charter, a referendum petition with enough signatures requires the Council to vote to reverse its decision on the subject of the petition. If that is not done, a Special Election on the petitions is required.

The eight petitions were presented June 8 and June 12, and received more than enough signatures to qualify as referendum petitions. But in a special meeting July 28, the Council majority declined to reverse its position.

Plan B?

Cardon’s reasons for the appeal included concerns about the timing of the election. According to Cardon, the process for holding the election, including having to issue a seven-day notice, would make it difficult to hold it by Sept. 30.

Katsakiores objected, saying, “I think a terrible, terrible injustice has been done to the people of Derry.

“They worked hard, the judge found in favor of us and now we are going to spend another bundle of money to go to court?” she said. Katsakiores called the decision to appeal “obscene” and said she was “totally against it.”

But the majority prevailed.

In a phone interview Friday, Wetherbee, a former Town Councilor, said he was disappointed but not surprised. “I knew this was going to happen as soon as I heard they’d called the special meeting,” Wetherbee said.

In Wetherbee’s opinion, it was “pretty clear that they had been discussing this behind the scenes.

“It’s all games, stalling, delays,” Wetherbee said. “If they put this off until the tax rate is set, then the election is a moot point.”

Do he and his two colleagues have a Plan B?

“Absolutely,” Wetherbee said. “At this point, we’re looking at what options we have to get this to an election the fastest.”

Wetherbee said he found no ambiguity in Judge Anderson’s ruling. “I could understand their appeal,” he said of the Councilors, “if the judge’s decision had been a little more ambiguous.

“Our goal,” he said, “is to get the election back on track.”

Wetherbee said the town still has time to make the DRA guidelines.

And, he said, “We have a judge’s order that says there will be an election.”

In an e-mail after the meeting, Bourdon wrote, “I want to congratulate Jenna Paradise, Brian Chirichiello, Neil Wetherbee and all the constituents who stuck with it. The people of Derry are resilient, strong and focused. The judicial system has ruled and now it’s time to hear from the voters. Protecting public safety has to be priority number one!”

Public forum

In the Public Forum portion of the Sept. 15 Council meeting, reactions to Judge Anderson’s decision were mixed.

Resident Mike Gill said, “I am disappointed with the judge’s decision, and I urge you to continue this matter to Superior Court.”

Chirichiello said, “It’s clear from the decision that the Council chose to ignore the charter. I am urging you to do the right thing.”

Paradise read a prepared statement in which she responded to some of Cardon’s statements to the media. Cardon had stated that the “taxpayers of Derry are losing,” and Paradise said, “The taxpayers are not losing. This is a system of checks and balances. Their voices will be heard.”

The whole process was “ridiculous and unnecessary,” according to Paradise. “If the four Councilors would look beyond pride and arrogance, we could have had this resolved by now.”

And if the vote goes against the petitions, Paradise said, “I will certainly eat a slice of humble pie.”

“Actions have consequences,” resident Phil Brophy said, noting that in July the Fire Department was only at its recommended staffing of 14 officers on three days.

Brophy was also concerned about the cuts to police personnel, noting that with the heroin epidemic, crime, particularly home break-ins, is on the rise.

“Public safety,” he said, “has to be put back on the front burner.”