The Derry Town Council will take a second look at its vote to approve the Professional, Administrative and Technical Employees’ (PATE) collective bargaining agreement.
At its Feb. 18 meeting, the Council voted 3-2 to approve the contract, with Councilor Phyllis Katsakiores abstaining. Councilor Mark Osborne challenged the vote, saying that 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 councilors at the meeting. Therefore, he said, Katsakiores’ abstention counted and the motion failed, 3-3.
As previously reported in the Nutfield News, Osborne said at that time that he was considering legal action against the town unless the Council overturned the vote. Councilor Al Dimmock supported him.
Acting Town Administrator Larry Budreau consulted Town Attorney Brenda Keith, and at the March 4 meeting, Chairman Michael Fairbanks said, “I called it wrong.”
Keith wrote in a memo that Section 10.8 (E) of the charter defines a majority vote as “a majority of those present and voting with a quorum of the body present.” For non-appropriation votes, she wrote, that means abstentions are not counted in determining the vote count. She referenced case law and Robert’s Rules for this interpretation.
Keith also wrote that under section 5.9(B), “appropriation votes” require a majority vote of the entire Council. She wrote that the cost items of a labor contract are considered an appropriation and must be voted on by the entire body.
Keith added that if there is a budgetary impact in the current year, the vote may be seen as a supplemental appropriation in the current year, and Charter Rule 9.6 must be considered, requiring a two-thirds majority of all Council members to adopt a supplemental appropriation after the annual budget is adopted.
Under Section 5.9 B, Budreau wrote in his own memo, a majority vote of the entire Council is needed to pass a collective bargaining agreement.
“The labor contract is considered an appropriation vote,” Fairbanks told the Council and television audience.
A vote to approve the contract would have required four affirmative votes, Budreau said after the meeting. The vote was 3-2 and is invalid, he said.
Budreau said he was not sure what the next step would be. “I’m going to meet with the Council and ask them,” he said.
The PATE group covers fire, police, technical and administrative personnel, who have been without a contract since 2011.