MERRIMACK CHARTER
COMMISSION
REGULAR MEETING
October 13, 2005
Commission members present:
Chairman Tom Mahon, Vice Chairman Heather Anderson, Peter Batula, Robert
Kelley, Finlay Rothhaus, Tim Tenhave, Lon Woods, and David Yakuboff. Excused: Secretary Fran L’Heureux.
Chairman Mahon convened the
meeting of the Charter Commission at 7:12 pm in the Conference Room of the Town
Hall.
Announcements
Chairman Tom Mahon noted the
Charter Commission will be holding a Public Hearing on November 8, 2005. This meeting will be held to review the
draft charter to date. He noted
that minutes and progress of the Commission are on the website. The next meeting of the Commission will
be held on Tuesday, October 18, 2005 at 6:00 PM
Public Comment
Andrew
Sylvia, 28 Merrymeeting Drive, noted that the Charter Commission could
hopefully give the referenda more teeth.
He noted he believes there is a need to change the Warrant Article
system.
Tom
Mahon noted that the Commission is limited by state law regarding what can be
done with Warrant Articles.
Chair – none
Vice Chair – none
Complete Review of Article V – Administrative &
Judicial Boards
Tom Mahon noted that action has been taken on all
section of this Article.
A motion was made by Robert Kelley and seconded by
Lon Woods to adopt Article V as follows:
Article V - Administrative
and Judicial Boards
5-1 Administrative
Boards/Committees/Commissions
A. Planning Board. There shall be a Planning Board
consisting of seven (7) members as provided by New Hampshire State Law. Six (6) of these members shall be
appointed by the Town Council for terms of three (3) years, such terms to be
staggered. One (1) Town Council
member shall be appointed annually to serve as an ex officio member. There shall also be three (3) alternate
members appointed in the same manner as regular appointed members, except no
more than one alternate appointed member’s term shall expire in a single
year. The Town Council shall fill
any vacancy for the period of the unexpired term. The Planning Board shall have all the powers granted to
Planning Boards by New Hampshire State Law.
B. Conservation
Commission. There shall be a
Conservation Commission consisting of seven (7) members. Six (6) of these members shall be
appointed by the Town Council for terms of three (3) years, such terms to be
staggered. One (1) Town Council
member shall be appointed annually to serve as an ex officio member. There shall also be two (2) alternate
members appointed in the same manner as regular appointed members, except no
more than one alternate appointed member’s term shall expire in a single
year. The Town Council shall fill
any vacancy for the period of the unexpired term. The Conservation Commission shall have all the powers
granted to Conservation Commissions by New Hampshire State Law.
C. Parks and Recreation
Committee. There shall be a Parks
and Recreation Committee consisting of twelve (12) residents of the Town of
Merrimack. The Town Council shall
appoint seven members of the Committee for three-year terms and two alternates
who will serve for a period of three (3) years each. One (1) Town Council member shall be appointed annually to
serve as an ex officio member. In
addition, for members shall be appointed by Merrimack organizations. There shall be one voting member from
each of the following organizations:
the Merrimack Youth Association (MYA), The Senior Citizen Club, the
School Board, and a representative from the Merrimack High School student body. Such organization members shall be recommended
by their organization, and, if approved by the own Council, they shall be
appointed for a one-year term.
Vacancies shall be filled by appointment of the Town Council for the
unexpired term. The Parks and
Recreation Committee shall have all the power granted to Parks and Recreation
Committees by New Hampshire State Law.
D. Heritage
Commission. There shall be a
Heritage Commission consisting of five (5) members. Three (3) of these members shall be appointed by the Town
Council for terms of three (3) years, such terms to be staggered. One (1) Town Council member shall be
appointed annually to serve as an ex officio member. One (1) Planning Board member shall be appointed annually to
serve as an ex officio member.
There shall also be three (3) alternate members appointed in the same
manner as regular appointed members, except no more than one alternate
appointed member’s term shall expire in a single year. The Town Council shall fill any vacancy
for the period of the unexpired term.
The Heritage Commission shall have all the powers granted to Heritage
Commissions by New Hampshire State Law.
E. Other Administrative
Committees. Other administrative
committees may be established as necessary by the Town Council.
5-2 Elected
Boards/Committees/Commissions
A. Trustees of Trust
Funds. There shall be a board of
three (3) Trustees of Trust Funds whose powers and duties are provided by New
Hampshire State Law. Trustees of
Trust Funds shall be elected at the regular Town election for terms of three (3)
years, one Trustee each year.
Vacancies shall be filled by appointment by the Town Council for the
unexpired term.
B. Library Trustees. There shall be a board of five (5)
Trustees of the Library whose powers and duties are provided by New Hampshire
State Law. Library Trustees shall
be elected at the regular Town election for terms of 3 years, staggered so that
no more than 2 Trustees are elected at one time. Vacancies shall be filled by appointment by the Town
Council for the unexpired term.
C. Ethics Committee. The Ethics Committee shall consist of
five (5) residents of the Town of Merrimack for three-year terms on a staggered
basis. A quorum of three or more
Committee members shall be necessary to hear any complaint that is filed. Should a vacancy in the Committee
arise, the remaining members of the Ethics Committee shall appoint a Town
citizen to serve out the remainder of the term. Any tie shall be resolved by the vote of the Town Moderator. The members of the Ethics Committee
shall elect a Chairperson on an annual basis.
5.3 Judicial
Boards/Committees/Commissions
A. Zoning Board of
Adjustment. There shall be a
Zoning Board of Adjustment appointed by the Town Council, consisting of five
(5) members each serving a three-year term and three (3) alternates each
serving a three-year term. Such
terms shall be staggered. The Town
Council shall fill any vacancy for the period of the unexpired term. The Zoning Board of Adjustment shall
have all the powers granted to such boards under New Hampshire State Law.
5.4 Vacancies in Elected
Office
Unless otherwise specified
in this Charter, or as otherwise provided by New Hampshire State Law, in the
event of a vacancy in an elected office, board or commission of the town, the
Town Council shall fill that vacancy by appointment, such appointment to
continue until the next regular Town election.
5.5 Terms of Appointive
Office
The terms of the office of
all members of appointed boards, committees, and commissions shall begin on
July 1 and end of June 30. If an
appointee receives an appointment subsequent to July 1 of the year in which the
term of office originally commenced, the term to which the person was appointed
will end June 30 in the year that it was scheduled to end.
5.6 Annual Review of Town
Boards/Committees/Commissions
At least annually, and more
often if town affairs warrant, the Town Council shall meet with the chairs of
all standing and other Town boards, committees, and commissions to review
significant actions taken by the committees, project current under discussion,
and anticipated activity for the coming year.
The motion passed 8-0-0.
Tim Tenhave questioned when the approved articles
would go to the Commission’s attorney and when they would be posted on the
website. Heather Anderson noted
that room is being prepared on the website for the drafts. Tom Mahon noted that the Commission is
getting to the point when the approved articles should be submitted to the
attorney. He noted he would like
to send the first 5 articles to the attorney when they have been approved. Mr. Tenhave noted he would like
feedback from the attorney before the Public Hearing.
Complete Review of Article III – Governing Board
3.8 Powers and Duties
Tom Mahon noted there are three ways the Commission
can delineate these powers: the governing body is the legislative body, the
Official Ballot process with the Deliberative Session, and the Town Meeting
form with a budgetary town meeting.
There was concern expressed by the Commissioners regarding a meeting of
the public. There is concern that
there is no place in town to hold a significant number of the voters. There was also concern expressed
regarding the fact that since so few voters go to a town meeting or a
deliberative session it is possible for a small faction to control what goes
before the voters. Mr. Mahon noted
it is possible to go the way of the Londonderry school district and require a
quorum of the voters to attend a town meeting or deliberative session before
any action can be taken. Peter
Batula noted that his feeling is that the people are overwhelmingly opposed to
the Deliberative Session and they would prefer to have the Town Council be the
legislative body.
Tim Tenhave noted he is still not convinced that the
town cannot have an official ballot with amendments made at the Town Council
level. Finlay Rothhaus noted that
the absence of a Deliberative Session would work for Merrimack. Heather Anderson noted she is inclined
to run this idea up the flagpole and see if it passes muster. She feels that this idea would be the
right thing for Merrimack. This is
an improvement to the quorum idea.
Mr. Mahon noted that the idea of a quorum meets the
letter, if not the spirit of the law.
He noted that under the official ballot law it is not permitted to have
amendments to ballot questions made at the Town Council level without a
Deliberative Session.
Lon Woods noted it is not the role of the Charter
Commission to take a position that is not allowed to it. He suggested that the Commission go
with making the Town Council the governing and legislative body. He noted with this suggestion that the
Commission needs to take a long hard look at the issues of referendum and
initiative to protect the people.
Peter Batula questioned a fair quorum. He noted that 500 voters is less than
3.5% of registered voters in town.
Mr. Rothhaus noted that if there is no quorum then it means that the
voters are happy to let others take the lead. He noted that the dilemma is that the form of government
must allow the citizens to vote and have a final say about the ballot. Mr. Batula noted he is not opposed to
public debate, but is looking at the ability of small groups to make
changes. He noted he feels that
the public has asked for something better than this. He noted a representative quorum is needed at a Deliberative
Session and suggested 10% or 1,500 people.
Ms. Anderson questioned the cost of the Deliberative
Session. Mr. Mahon noted that this
can cost anywhere from about $6,000 to $12,000 depending on the electronics
needed. He noted that the town
does not have a place to hold 1,500 people. This quorum would force the meeting to be held in 2 or 3
places simultaneously. He noted
that 14 other communities have the Town Council be the governing and
legislative. None of these
communities is considered spendthrifts.
The Town Council is not running amok with people’s money in these
communities. They are sensitive to
the people at the Public Hearing process.
He noted that a small group of people can influence the Town Council
through the Public Hearing process.
Mr. Woods noted that although the town spending is
stable the Deliberative Session cannot take credit for this. There is a space problem for a voters’
meeting. He suggested that the
town should perhaps look at a different way to govern itself. The people still have a say with the
election of the Town Councilors, initiative, and referendum. He noted it is time to move on and give
the governing of the town to the Town Council.
David Yakuboff noted he agrees with Mr. Woods. He noted if the town cannot trust its
Councilors the voters can remove them or vote them out of office.
A motion was made by Robert Kelley and seconded by
Lon Woods to adopt the following language:
Powers and Duties
A. Except as herein
otherwise provided, the Council shall have all the powers conferred upon and
discharge all the duties impose upon town councils, town meetings, boards of
mayor and aldermen, and selectmen of towns by law.
Robert Kelley noted this will refine and channel further
discussion. Mr. Tenhave noted that
the passage of this language will create a charter that will fail. Mr. Rothhaus noted that this is the
crux of the matter. He noted it is
difficult to come back from this decision. He noted he is not in favor of this resolution.
The motion passed 5-3-0.
Mr. Mahon noted that there is always the possibility
of alternate language if it is proposed and adopted. The Commission still needs to deal with this. Mr. Mahon noted that bond issues could
be moved to the ballot along with the budget. Ms. Anderson noted that in the finance section of this
charter the Commission could require that all bond issues go to the ballot.
Complete Preliminary Review of Article VI –
Administration of Government
1. Town Manager
A motion was made by Heather Anderson and seconded
by David Yakuboff to adopt the following language:
Town Manager
The chief administrative
officer of the Town shall be the Town Manager (hereinafter called the
“Manager”). The Council shall
appoint a person especially qualified by experience and training, who received
the votes of at least five (5) members of the Town Council, to be Manager. The Manager shall serve at the pleasure
of the Council, which shall fix the manager’s salary and terms of employment.
The motion passed 8-0-0.
2. Qualifications
A motion was made by Heather Anderson and seconded
by Peter Batula to adopt the following language:
Qualifications of Manager,
and Oath and Bond
Qualifications of Manager
The Manager shall be appointed solely on the basis of qualification for the
office, with special reference to education, training and previous experience
in public or private office. The
manage need not be a resident of the Town or of the State of New Hampshire at
the time of appointment, but mist establish residence in the Town within a
period fixed by the Town Council.
The Manager shall devote full time to the office and shall not hold any
other public office, elective or appointive, except as authorized by this
Charter, nor engage in any other business or occupation unless with the
approval of the majority of the Town Council.
Oath and Bond
Before entering upon the
duties of office, the Manager shall be sworn to the faithful and impartial
performance thereof, and a certificate to that effect shall be filed with the
Town Clerk; and the Manager shall execute a bond in favor of the town for the
faithful performance of the Manager’s duties in such sum and with such surety
or sureties as may be approve by the Council.
The motion passed 8-0-0.
3. Evaluation of Manager’s
Performance
Tom Mahon noted that this issue is often dealt with
in the Manager’s contract. This
section will require an evaluation of the Manager’s performance on at least an
annual basis.
A motion was made by Heather Anderson and seconded
by David Yakuboff to adopt the following language:
Following the first
anniversary of the Manager’s service to the Town and during each subsequent
year, the Council shall conduct an evaluation of the Manager’s performance in
office. After such evaluation, the
Council shall determine whether the Manager’s overall performance in office has
been satisfactory or unsatisfactory.
The Council shall also establish the Manager’s compensation for the
ensuing year.
Tom Mahon noted that Town Managers’ contracts are
usually multiple year contracts.
Most of these contracts also provide for performance compensation. Heather Anderson noted that this
section would provide for on-going dialogue between the Manager and the
Council.
The motion passed 8-0-0.
4. Reprimand and Removal
from Office
A motion was made by Tim Tenhave and seconded by
Robert Kelley to adopt the following language:
(A) The Manager may be
reprimanded or removed by a vote of five (5) members of the Council as herein
provided. The Council shall adopt
a resolution stating its intention, and the reasons, for reprimanding or
removing the Manager, a copy of which shall be served on the Manager. Immediately upon delivery to the
Manager of a resolution stating the intent of the Council to remove, the Manger
shall be relieved office and all further duties. Immediately upon delivery to the Manager of a resolution
stating the intent of the Council to reprimand, the Manager may be relieved of
office and all further duties. The
Manager shall continue to receive full salary until the effective date of a
final resolution of reprimand or removal.
If a final resolution of removal is not adopt the Manager shall resume
office forthwith.
The motion passed 8-0-0.
A motion was made by Tim Tenhave and seconded by
Heather Anderson to adopt the following language:
(B) The Manager may reply
to the resolution, in writing, within 10 days, and upon request, shall be
afforded a hearing, either public or private in accordance with the provisions
of New Hampshire State Law, which shall occur not earlier than 10 days nor
later than 15 days after such hearing is requested. After the hearing, if one is requested, and after full
consideration, the Council, by a vote of five (5) of its members, may adopt a
final resolution of reprimand or removal within seven (7) days. The action of
the Council in reprimanding or removing the Manager shall be final.
During the period between
adoption of a resolution for removal under Paragraph (A) of this section and
final action under Paragraph (B), the Council shall, by majority vote of all
its members, appoint an Acting Manager to serve at the will of the Council for
not more than 90 days.
The motion passed 8-0-0.
5. Acting Manager
A motion was made by Tim Tenhave and seconded by Lon
Woos to retitle this section “Acting Manager”, rather than “Temporary
Incapacity” as suggested. The
motion passed 8-0-0.
There was a concern regarding the fact that there is
nothing in the proposed wording about what happens when a vacancy occurs. Tom Mahon suggested that another
section about this vacancy should be created.
A motion was made by Tim Tenhave and seconded by
Peter Batula to adopt the following language:
Acting Manager
If the Manger is determined
by a vote of at least four (4) members of the Council to be temporarily
incapacitated or unable to act or the Council may determine that the office has
become temporarily vacant, the Council shall, within fifteen (15) days from
such determination, appoint an Acting Manager in the same manner as in Section
6.1 who shall serve for not more than one hundred twenty (120) days or such
lesser time until the incapacity shall be relieved.
The Acting Manager shall
have all the powers and perform all the duties of the Manager except to the
extent that said powers and duties may be specifically restricted by Council
resolution. Said Acting Manager
shall be paid such salary for services hereunder as may be prescribed by the
Council. The Acting Manager may be reappointed for an additional term of one
hundred twenty (120) days.
By a vote of at least four
(4) Councilors, the Council may determine from credible medical or other
evidence that the Manager is incapacitated and unable to perform any or all
duties and the office may be declared vacant.
The motion passed 8-0-0.
6. Vacancy
A motion was made by Tim Tenhave and seconded by
Peter Batula to adopt the following language:
Any vacancy in the office
of Town Manager shall be filled as prescribed by New Hampshire State Law.
A motion was made by Lon Woods and seconded by
Robert Kelley to table action on this motion until wording can be refined. The tabling motion passed 8-0-0.
7. Powers and Duties of the
Manager
A motion was made by Lon Woods and seconded by David
Yakuboff to adopt the following language:
Powers and Duties of the
Manager
A. The Manager shall be the
chief administrative officer of the Town, shall supervise and be responsible
for the administrative and financial affairs of the Town, and shall carry out
the policies enacted by the Council.
The Manager shall be charged with the preservation of the health, safety
and welfare of persons and property and shall see to the enforcement of the
ordinances of the Town, this Charter and general laws governing administration
of the Town. The Manager shall
supervise and direct the administration of the Town departments and personnel
therein.
The motion passed 8-0-0.
There was some concern that the wording as proposed
would require Council approval of the receptionist in the Manager’s office.
A motion was made by Heather Anderson and seconded
by Tim Tenhave to adopt the following language:
B. Except as otherwise
provided by this Charter, the Manager shall appoint upon merit and fitness
alone, and may remove all officers and employees of the Town subject to the provisions
of pertinent statutes, the Administrative Code and the Personnel Plan.
The motion passed 8-0-0.
A motion was made by Heather Anderson and seconded
by Robert Kelley to adopt the following language:
C. The manager shall fix
the compensation of all town officers and employees appointed by the Manager
within the limits established by existing appropriations.
The motion passed 8-0-0.
A motion was made by Lon Woods and seconded by David
Yakuboff to adopt the following language:
D. The Manager shall have
full jurisdiction over the rental and use of all Town facilities under the
Manager’s control. The Manager shall be responsible for the maintenance and
repair of all Town property under ht Manager’s control, within the limits of
existing appropriations.
An amendment was made by Heather Anderson and
seconded by David Yakuboff to adopt the following language:
D. The Manager shall keep a full and
complete inventory of all property of the town, both real and personal. The manager shall have full jurisdiction
over the rental and use of all Town facilities under the Manager’s
control. The Manager shall be
responsible for the maintenance and repair of all Town property under the
Manager’s control, within the limits of existing appropriations.
Tim Tenhave questioned the definition of “personal”
property. He noted he would like a
legal definition. Tom Mahon noted
this is best addressed in the personnel policy. It could be covered in the Administrative Code. He noted he would make a query to the
attorney regarding personal and intellectual property.
The amendment passed 7-0-1.
The amended main motion passed 8-0-0.
A motion was made by Heather Anderson and seconded
by Peter Batula to adopt the following language:
E. The Manager shall be
responsible for purchasing all supplies, material and equipment for all
departments and activities of the Town.
The motion passed 8-0-0.
A motion was made by Heather Anderson and seconded
by David Yakuboff to adopt the following language:
F. The Manager shall keep
the Council informed of the needs of the Town and make such reports and
recommendations as the Manager may deem advisable or as the Council, as
provided by this Charter or by ordinance, shall direct.
The motion passed 8-0-0.
A motion was made by Heather Anderson and seconded
by David Yakuboff to adopt the following language:
G. The Manager shall set
rules and regulations and establish a system of personnel administration known
as the “Personnel Plan”. The
Personnel Plan shall include provisions with regard to classification,
compensation, selection, training, promotion, grievances, discipline,
vacations, retirement and any other matters necessary to the maintenance of
efficient service and proper working conditions.
The motion passed 8-0-0.
A motion was made by Lon Woods and seconded by Peter
Batula to adopt the following language:
H. The Manager shall
certify to the Council that employees of the Town and their compensation comply
with approved pay rates.
A motion was made by Lon Woods and seconded by Peter
Batula to table action on paragraph H.
The motion passed 8-0-0.
A motion was made by David Yakuboff and seconded by
Robert Kelley to adopt the following language:
I. The Manager shall be
responsible for the collection, accounting, deposit and periodic reporting of
all town revenues and expenditures in a secure and business-like manner in
accordance with generally accepted accounting practices and proper internal
controls.
J. The Manager shall have
and perform such other powers and duties not inconsistent with the provisions
of this Charter as now are, or may be, conferred or imposed upon the Manager by
ordinance, or by New Hampshire State Law.
The Manager shall attend all meetings of the Council unless excused by
the Council. The Manager shall have the right to take part in the discussion of
all matters before the Council, but not the right to vote.
The motion passed 8-0-0.
Other Business
There was no other business at this time.
Questions from the Press
There were no questions from the press at this time.
Comments from Commissioners
There were no comments from the Commissioners at
this time.
Adjourn
A motion was made by Lon Woods and seconded by Tim
Tenhave to adjourn the meeting at 9:55 PM. The motion passed 8-0-0.
Respectfully submitted,
Rita Carlton, Recording
Secretary