MERRIMACK CHARTER COMMISSION

REGULAR MEETING

November 30, 2005

 

 

Commission members present: Chairman Tom Mahon, Vice Chairman Heather Anderson, Secretary Fran L’Heureux, Peter Batula, Robert Kelley, Finlay Rothhaus (arrived at 6:25 PM), Tim Tenhave, David Yakuboff, and Lon Woods

 

Chairman Mahon convened the meeting of the Charter Commission at 6:13 pm in the Conference Room of the Town Hall. 

 

Announcements

Heather Anderson noted a fundraising event for the Junior Peewee Cardinals Cheerleaders.

 

Tim Tenhave noted that the Horse Hill Nature Preserve Ad-Hoc Committee will meet at 7:00 PM on Monday with the Nashua Regional Planning Commission in the Courthouse. 

 

Public Comments

Andrew Sylvia questioned the Commission plan for the passage of the charter in April.  He questioned when the plan will be put into force.  Chairman Mahon noted that the wording of the Charter needs to be completed before any work can be done to help the Charter pass in April.  The intent of the Commission is to put all material on the website and in a binder at the library.  A copy of the rough draft as it was used at the Public Hearing is located at the reference desk at the Town Library.

 

Reports

            Chair – Chairman Mahon noted that a letter has been received from the Commission’s attorney regarding articles 7, 10, 11, and 12.  The attorney still has some concerns regarding the inclusion of the code of ethics in the Charter.

Vice Chair – Vice Chairman Anderson noted an additional query regarding section 3.1.a and 3.1.b.  Further clarification is required for these sections.  Ms. Anderson noted she has begun the process of moving the adopted articles to one document.  (Finlay Rothhaus arrived at this time.)  Ms. Anderson noted that she would remove the votes of the Commission from the finalized document.

 

Review Additional Language for Moving to Draft Charter  (old article numbering)

 

Article 3.2(a) and 3.1(b) – Membership; Terms of Office – Nothing was changed.

 

Article 6.4 – Reprimand and Removal from Office – Nothing was changed.

 

Article 10 – Land Use Ordinances and Violations and Penalties – Nothing was changed.

 

Article 11 – Continuation of Government – A motion was made by Tim Tenhave and seconded by Heather Anderson to add the following paragraph to Section 11.5:

The Administrative Code shall remain in effect until such time as the Town Council shall adopt a proposed Administrative Code as defined by the process in Article 6-10.


An amendment was made by Tom Mahon and seconded by Lon Woods to add the words “in effect on the date of the adoption of this Charter” after the words “The Administrative Code”.  The amendment and motion passed 9-0-0.

 

Article 12 – Definitions for RSA, Ex-Officio and Certified – A motion was made by Tim Tenhave and seconded by Robert Kelley to amend the following definitions:

Ex-Officio – The words “ex officio” shall mean a Town official serving as a member of a board, committee, or commission.  This member shall have all the rights of regular members of such board, committee, or commission, except the right to hold an office (Chair, Vice-Chair, Secretary, etc.) on such board, committee, or commission.

 

RSA – The acronym “RSA” refers to the New Hampshire Revised Statutes Annotated.

 

Certified – The word ‘certified” shall mean the completing of the Election procedure by the Town Moderator and the Town Clerk as defined, but not limited, by RSA 669 including any provisions for recount.

 

The motion passed 9-0-0.

 

Review Draft Charter

Counsel from Attorney RE: Articles 7, 10-12

Tom Mahon noted that the attorney feels that the terms “conflict on interest” and “family” are too broad.  These terms may not withstand legal scrutiny.  Heather Anderson noted that the terms “conflict of interest” in this situation is not a definition.

 

A motion was made by Heather Anderson and seconded by Tim Tenhave to add the following language to the Conduct of Officials/Code of Ethics Definitions of Terms:

A conflict of interest shall be defined as a situation or circumstance in which an official or employee or a member of his or her family, directly or indirectly, has a financial interest, aside from his or her salary, greater than any other citizen or tax payer.

 

Finlay Rothhaus questioned the inclusion of “taxpayer” in this definition.  Tom Mahon noted that this is to juxtapose the position of an official and other members of the community.

 

Tim Tenhave questioned the difference between a “citizen” and a “resident”.  The word “citizen” should be changed to “resident”. 

 

Lon Woods questioned whether this change will make a significant change in the “Code of Ethics” ordinance that was inserted in the Charter.  Finlay Rothhaus noted he feels that this is a clarification of the original ordinance.

 

The motion passed 9-0-0.

 

Finlay Rothhaus questioned the need to change the definition of “resident”.  Tom Mahon noted that there is a conflict of interest code in the Administrative Code.  There is a need to make sure that the Charter is preeminent if there is a difference between the Charter and the Administrative Code.

 

Tim Tenhave suggested that the attorney be invited to the last meeting before the Draft Charter is submitted.


A motion was made by Tom Mahon and seconded by Tim Tenhave to add the following language in section 11.9 (Transition):

“to the extent that there is any conflict between this Charter and any continued Code, Ordinance, Policy, or Provision the Charter shall prevail”

The motion passed 9-0-0.

 

Article 8

Tom Mahon noted that the attorney is suggesting something simpler.  Lon Woods noted that the people who put the Ethics Code together were satisfied with this definition. 

 

A motion was made by Lon Woods and seconded by Tim Tenhave to keep the definition of “family” in Article 8 as it is.

 

Tom Mahon noted that no motion is needed if the wording remains the same.

 

Article 9

Some concern was expressed regarding section 9-1 and when the Council should listen to residents.  The Commission felt that it is important that the Council provide time for residents to speak to the Council.

 

A motion was made by Robert Kelley and seconded by Fran L’Heureux to change section 9.1 as suggested by the attorney to the following:

CITIZEN CONCERNS   (9-0-0)

The Council shall establish rules for residents to address the Council at regular and other meetings.  The Council shall provide a minimum time for individuals to address the Council and the total time that the Council will hear concerns or proposals at each meeting.  The rules shall be reviewed annually.

The motion passed 9-0-0.

 

Content/Process Inconsistencies

Article 2.2

A motion was made by Heather Anderson and seconded by Fran L’Heureux to change the wording in the last sentence of this article to: “Vacancy in the office of Moderator shall be filled pursuant to New Hampshire State Law.”

The motion passed 9-0-0.

 

Article 3.7(d)

It was noted that not every action taken by the Council needs to be voted on.  There are other ways to take action rather than by motions.  No changes were made to this section.

 

Article 4.1

Tom Mahon noted that the Town Manager is the clerk of the Town Council by this Charter. 

 

A motion was made by Tim Tenhave and seconded by Heather Anderson to move the following language to section 4.1 of the draft charter:

An ordinance may be introduced by any Town Councilor at any regular or special meeting of the Town Council.  Upon introduction of any ordinance, the Town Manager shall distribute a copy to each Town Councilor, and the Town Clerk, shall file a reasonable number of copies in the office of the Town Manager, and shall post a copy in at least two other public venues as the Town Council may designate.

The motion passed 9-0-0.


Article 5.1(b)

A motion was made by Fran L’Heureux and seconded by Finlay Rothhaus to move the following language to section 5.1(b) of the draft charter:

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 three (3) alternate members appointed in the same manner as regular appointed members, except no more than one (1) alternate appointed member’s term shall expire in a single year.

The motion passed 8-1-0.

 

Article 5.2(c)

A motion was made by Robert Kelley and seconded by Finlay Rothhaus to move the following language to section 5.1(c) of the draft charter:

There shall be a Parks and Recreation Committee consisting of twelve (12) residents of the Town of Merrimack.  The Town Council shall appoint seven (7) members of the Committee for three-year terms and two (2) 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, four (4) members shall be recommended from Merrimack organizations.  There shall be one (1) voting member from each of the following organizations: the Merrimack Youth Association (MYA), the Senior Citizens 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 Town Council, they shall be appointed for a one-year term.  Vacancies of Town Council appointed members shall be filled by appointment of the Town Council for the unexpired term.  Vacancies of the other members shall be filled by recommendation of their respective organizations and approved by the Town Council for the unexpired term.  The Parks and Recreation Committee shall have all the powers granted to Parks and Recreation Committees by New Hampshire State Law.

The motion passed 9-0-0.

 

Article 5.1(d)

A motion was made by Tim Tenhave and seconded by Peter Batula to move the following language to section 5.1(d) of the draft charter:

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) member shall be recommended by the Planning Board and approved by the Town Council.  This 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 (1) 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 seeking the recommendation of the Planning Board if a vacancy in the Planning Board member should occur.  The Heritage Commission shall have all the power granted to Heritage Commission by New Hampshire State Law.

The motion passed 8-1-0.

 

Article 5.2(c)

A motion was made by Lon Woods and duly seconded to move the following language to section 5.2(c) of the draft charter:

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 (3) 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 resident to serve out the remainder of the term.  Any tie shall be resolved by a vote of the Town Moderator.  The members of the Ethics Committee shall elect a Chairperson on an annual basis.

The motion passed 9-0-0.

 

Article 6.3

No changes were made to the wording of this article.

 

Article 8

A motion was made by Tim Tenhave and seconded by Fran L’Heureux to change the definition of “recuse” to:

Recuse: means to remove yourself completely from all further participation in the matter in question and those officials, board members or employees shall immediately leave the room or shall seat themselves with the other members of the public who are present.

 

Tom Mahon noted that the current definition defines a process.  Heather Anderson noted that the process is spelt out earlier in the article. 

 

The motion and second were withdrawn.

 

A motion was made by Heather Anderson and seconded by Peter Batula to remove the definition of the word “recuse” from this section.  The motion passed 9-0-0.

 

Preliminary Report Discussion

Tom Mahon noted that this is a working document and is not for public distribution at this time.  It is in a raw and rough format.  He asked the members of the Commission to look at it, see what they like and what they don’t like about it and what they might like to add to it.  He noted he would appreciate any thoughts from members of the Commission. 

 

A subcommittee was formed of Tom Mahon, Lon Woods, Robert Kelley, and Finlay Rothhaus to look at the Report and work on it to bring it back to the Commission.

 

Other Business

Fran L’Heureux questioned whether there would be another public hearing.  Tom Mahon noted that there is no time for another public hearing at this time.

 

Comments from the Commissioners

David Yakuboff questioned the Commission schedule for the next few months.  Tom Mahon noted that there would be meetings on December 6, 2005 and December 13, 2005.  Both of these meetings will be held at 7:00 PM.  There should be another meeting on January 3, 2006.  The state should be finished with the draft charter by the second week in January. 

 

Adjournment

A motion was made by Lon Woods and seconded by David Yakuboff to adjourn the meeting at 9:47 PM.  The motion passed 9-0-0.

 

Respectfully submitted,

Rita Carlton, Recording Secretary