MERRIMACK CHARTER
COMMISSION
REGULAR MEETING
October 18, 2005
Commission members present:
Chairman Tom Mahon, Vice Chairman Heather Anderson (arrived at 6:35 PM),
Secretary Fran L’Heureux, Peter Batula, Robert Kelley, Finlay Rothhaus, Tim
Tenhave, Lon Woods, and David Yakuboff
Chairman Mahon convened the
meeting of the Charter Commission at 6:12 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. The goal of the Commission is to have a
draft form of the Charter ready at that time for public review and comment.
Public Comments
There
was no public comment at this time.
Chair – Chairman Mahon noted that
section VII (Finance) has been completed, but is not yet ready for the
Commissioners. He has also looked
at Section VIII (Conduct of Official/Ethics). This section includes the Town’s Code of Ethics intact.
Vice Chair – none
Review Charter Draft
Article III – Governing Board
A motion was made by Peter Batula and seconded by
Lon Woods to adopt Article III – Governing Board as follows:
Article III – Governing
Board
3.1 Membership; Terms of
Office
(a)
Membership
Except as otherwise
provided in this Charter, all of the powers of the Town as authorized by New
Hampshire State Law shall be vested in a Town Council, hereinafter referred to
as the Council, or seven (7) Councilors.
(b)
Term of Office
The Councilors shall be
elected from the Town at large for 3-year staggered terms. All members shall take office following
certification of their election and after being duly sworn in, and shall hold
office until successors are duly elected and certified.
3.2 Organizational Meeting
The Councilors so chosen
shall meet in their capacity as the Council at the first regularly scheduled
meeting after certification of their election for the purpose of taking their
respective oaths of office, adopting rules, and for the transaction of business
required by law or ordinance to be transacted in such meeting.
3.3 Selection of Chair and
Vice Chair
The Council shall, by the
affirmative vote of at least four (4) of its members, at its Organizational
Meeting, choose one (1) of its members Chair for a term of one (1) year. The Council shall choose one (1) of its
members as Vice Chair for a term of one (1) year, who shall act in the absence
or disability of the Chair. IN the
event of a vacancy occurring in the office of Chair, the Vice Chair shall serve
out the unexpired term. The Chair
shall be the official head of the Town for all ceremonial purposes, shall
preside at all meetings of the Council, and may speak and vote at such
meetings.
3.4 Qualifications of
Councilors
(a)
Requirements
To be eligible for election
as Councilor, a candidate must be a registered voter, must have been a resident
domiciled in Merrimack for at least one year prior to the first day of the
filing period for candidacy, and after election must remain a domiciled
resident or relinquish the office, as provided for in Article 2-4(c).
(b)
Removal of Councilor
By a vote of five (5)
Councilors, the Council may, on specific charges and after due notice and
hearing, remove one of its own members for cause and declare a vacancy. Cause for purposes of this Section
shall mean one or more of the following: the member has missed three regular
scheduled meetings in sequence without leave of the Council; the member has
missed one third of all meetings within a calendar year without leave of the
Council; the member has falsified records; the member has misapplied Town funds
or property; or the members has interfered with administration as defined in
Section 6.9.
(c)
Incompatible Positions
No Councilor shall, while
serving a term, be eligible to hold any other Town position of
remuneration. No Councilor, while
serving a term, nor former Councilor, who has been out of office less than one
year, shall be appointed as “acting town manager.”
(d)
Incompatible Offices
Except as otherwise
provided in this Charter, members of the Council shall not hold any office or
employment with the Town. Former
members of the Council shall not be eligible for appointment as a compensated
Town officer or employee until one year after the expiration of their service.
3.5 Vacancies
In case a vacancy occurs in
the Town Council for any reason, the remaining Town Councilors shall, by
majority vote, appoint an acting Town Councilor from among person eligible to
hold the vacant office, to serve until the next regular Town election, at which
point the vacancy shall be filled by election for the remainder of the
unexpired term, provided, however, that, if the vacancy occurs fewer than
ninety (90) days prior to the next regular Town election, the vacancy shall not
be filled by appointment, but shall be filled at the next regular Town
election.
The Town Council shall act
to fill a vacancy no later than 21 days after the vacancy has been officially
declared. The person so appointed
shall be sworn and commence to serve forthwith.
3.6 Compensation and
Expenses
The Town Council shall
establish an annual salary and expense allowance for its members, subject to
the following:
No increase in such salary
or expense allowance shall be effective unless it shall have been adopted by a
vote of five (5) Town Councilors.
The new salary and expense
schedule shall be included in the next Town budget process, and shall take
effect in the fiscal period to which that budget applies.
No Councilor in office at
the time the next schedule is adopted shall receive any benefit of the new
schedule during the remainder of the Councilor’s then-current term of office.
Not withstanding the
foregoing, any decrease in such salary and expenses shall be adopted by a
majority vote and shall take effect immediately and apply to all Councilors
holding office at the time the decrease is adopted.
3.7 Exercise of
Powers/Meetings/Rules of Procedure
(a)
Exercise of Powers
Except as otherwise
prohibited by New Hampshire State Law or this Charter, the powers of the
Council may be exercised in a manner it so determines.
(b)
Quorum
A quorum of the Council for
the transaction of any business shall be four (4) of the members currently in
office. However, a small number
may adjourn the meeting to another time or date.
(c)
Meetings
All meetings of the Council
shall be public to the extent required by New Hampshire State Law.
Regular meetings shall be
held at such time, date, and place as the Council shall be ordinance or
resolution direct. Agendas shall
be prepared and posted at least 72 hours in advance of each regular meeting.
Special meetings may be
called by the Chair. Special
meetings may also be called at the written request of the Manager or at least
three (3) Councilors, and upon such request the Chair of the Council shall call
such special meeting. Written
notice of said meeting shall be given to the public and to each Councilor at
least twenty-four (24) hours prior to the call of the meeting, excluding
Saturdays, Sundays, and legal holidays.
An emergency meeting may be
called by the Chair when an immediate, undelayed action is deemed to be
imperative by the Chair, who shall employ whatever means are reasonably
available to inform the public and all Council members that an emergency
meeting is to be held.
(d)
Rules of Procedure
The Council shall establish
rules for its proceedings including but not limited to recording of votes,
posting and amending of agendas, and such parliamentary and other meeting
procedures not inconsistent with this Charter. Every matter coming before the
Council for action shall be put to a vote and all members shall vote “aye”,
“nay”, or abstain. A roll call
vote shall be taken upon the request of a single member of the Council. The results of such voting shall be
duly recorded.
3.8 Powers and Duties
A. Except as herein
otherwise provided, the Council shall have all the powers conferred upon and
discharge all the duties imposed upon town councils, town meetings, boards or
mayor and aldermen, and selectmen of towns by law.
B. All officers and members
of all boards, commissions and committees, and vacancies thereto shall be
appointed by the Council from among Town residents except unless otherwise
provided by this Charter.
3.9 Delegation of Powers
The Council may delegate to
one or more Town agencies the powers vested in the Council by this Charter and
Federal and New Hampshire State Law to grant and issue licenses and permits,
and may regulate the granting and issuing of licenses and permits by any such
Town agency, and may in its discretion, rescind any such delegation without
prejudice to any prior action which has been taken.
Upon questioning, Chairman Tom Mahon noted that a
positive vote for this motion means that the language is being moved to the Draft
Charter. He noted the Charter is
still a work in progress. The
Charter is not final until February 1, 2006 when it is presented to the Board
of Selectmen. There will be a need
to make sure that all sections are consistent and complete after they have been
moved to the Draft Charter
The motion passed 6-2-0.
Charter Drafts
Article VI – Administration of
Government
Chairman Tom Mahon noted he took section 6.7H to
refer to the power that the Town Manager has to sign the manifest to ensure
that employees are being paid the correct amount. This section also shows up in the Finance section of the
Charter. He will conduct further
research and present language at the next meeting.
Section 6.6 Vacancy
A motion was made by Tom Mahon and seconded by Fran
L’Heureux to adopt the following language:
6.6 Vacancy
Any vacancy in the office
of the Manager shall be filled as soon as practicable by the Council. The Council shall appoint an acting
Town manager to perform temporarily the duties of that office.
The motion passed 8-0-0.
Section 6.8 Appointment of
Department Heads; Suspension; Appeal
There was some discussion regarding the wording of this
section. Tom Mahon noted that the
suspension could be immediate. He
noted that most times the employee is suspended with pay or put on
administrative leave. (Heather
Anderson arrived at this time.)
A motion was made by Tim Tenhave and seconded by Robert
Kelley to adopt the following language:
Section 6.8 Appointment of
Department Heads; Suspension; Appeal
The Manger shall have the
power to appoint and remove, subject to the provision of this Charter, all town
department heads. Such appointments shall be on merit and fitness alone and
with confirmation of the Council.
The Manager, for just cause, may suspend or dismiss department heads or
take other appropriate disciplinary action. Said suspension, dismissal, or other disciplinary action
shall be effected only upon the Manager’s presentation to the department head
of a written specification of the reasons therefore at least ten (10) days
before said action is taken.
The said department head
involved may, within five (5) days, demand a hearing before the Council, in
which even the department head shall not be removed until such hearing has been
held. The Manager may, however,
suspend said department head from duty during said period, with or without pay. Such hearing shall be either private or
public, as allowed under New Hampshire State Law, at the aggrieved party’s
request. The Council, by a vote of
five (5) members may override the Manager’s decision.
Mr. Mahon noted that the term “just cause” requires
a high level of proof. He noted
this term requires that warning(s) be given regarding the fact that certain
actions may cause removal. There
is a need for a fair investigation and proof. He noted he does not know what the labor contracts with the
town contain for reasons for dismissal.
He noted that the term “cause” does not require as high a level of proof.
The Commission decided to remove the word “just”
from the third sentence of the first paragraph. The motion as changed passed 9-0-0.
6.9 Non-Interference with
Town Administration
A motion was made by Heather Anderson and seconded
by Tim Tenhave to adopt the following language:
6.9 Non-Interference with
Town Administration
The Council shall act in
all matters as a body. Except as
expressly provided elsewhere in this Charter, neither the Council nor any of
its members shall direct or request the appointment of any person to office or
employment; or direct the removal, suspension, discipline, adjustment in pay,
benefits, or working conditions of any employee by the Manager or of any of the
Town department heads.
No Councilor shall give
orders to or interfere with the performance of the duties of any of the
administrative officers or employees, either publicly or privately. Nothing contained in this section shall
prohibit the Council from meeting with the Manger to discuss the operation or
conduct of any department head or employee and to recommend an investigation
and report by the Manager of any complaint.
Any violation of the
provisions of this section by a Councilor shall constitute grounds for
forfeiture of office under the provisions of Section 3.4b.
The motion passed 9-0-0.
6.10 Departments:
Administrative Code
A motion was made by Heather Anderson and seconded
by Robert Kelley to adopt the following language:
6.10 Departments: Administrative
Code
The Town shall have
departments, divisions, boards or committees as may be established by this
Charter or as the Council may establish by ordinance. It shall be the duty of the Manager to draft and to submit to
the Council within 9 months after assuming office, an ordinance consistent with
this Charter to be titled as the “Administrative Code”, which provides for the
division of the administrative service of the Town into departments or agencies
and defines the functions and duties of each.
The ordinance shall
include, subject to any collective bargaining agreements that may be agreed
upon, provision for a merit plan to ensure that all appointments and promotions
in the service of the Town shall be made solely on the basis of merit and only after
appropriate examination or review of the applicant’s relative knowledge,
skills, abilities and experience and provisions governing discipline and
dismissal of personnel. Subsequent
to the adoption of such ordinance, upon recommendation of the Manager, the
Council by ordinance may amend it to create, consolidate or abolish
departments, agencies or other divisions of the Town, define the functions and
duties of each, or otherwise amend it.
The chief officer of each
department shall have supervision and control of such department and shall have
the power to prescribe rules and regulations for the conduct of such
department, not inconsistent with general law, this Charter, the Administrative
Code, and the provisions of the merit plan. Prior to adoption of the Administrative Code, the Manager
shall have the power to establish temporary rules and regulations to ensure
economy and efficiency in the several divisions of Town government.
Tim Tenhave noted he likes the idea of adding the
Personnel Plan to this section.
Tom Mahon noted that the Personnel Plan is the plan for the general
management of the employees, including policies, sick leave, benefits, etc.
The maker of the motion and the second agreed to
change the word “merit” in the first sentence of the second paragraph and in
the first sentence of the third paragraph to the word “personnel”.
Mr. Mahon noted that this section requires that
within 9 months of the adoption of this Charter any proposed changes must be
proposed by the Manager.
The motion passed 9-0-0.
6.11 Town Clerk/Tax
Collector
A motion was made by Robert Kelley and seconded by
Tim Tenhave to adopt the following language:
6.11 Town Clerk/Tax
Collector
A Town Clerk/Tax Collector
shall be elected to a three (3) year term at a town election by ballot pursuant
to the applicable provisions of New Hampshire State Law and shall have the
powers and duties prescribed by New Hampshire State Law pertaining to Town
Clerk and Tax Collectors.
The Town Clerk/Tax
Collector may be removed from office in accordance with the applicable
provisions of New Hampshire State law.
Vacancy in the office of Town Clerk/Tax Collector shall be filled in
accordance with the applicable provisions of New Hampshire State Law.
The motion passed 9-0-0.
Town Attorney
Tom Mahon noted there is nothing in this Charter
regarding a Town Attorney. He
questioned whether the town needs or wants such an entity and if it is needed
or wanted, where it should be put.
He noted he thinks it belongs in Article VI.
Finlay Rothhaus noted it is better to have a firm on
retainer. Lon Woods noted the town
will know when it needs an attorney.
Article IX – Citizen Initiatives
9.1 Citizen Concerns
Tim Tenhave noted this article speaks of ways
citizens can be heard. The
distinctions are petitions versus initiatives versus referendums. He noted that referendums can also
change the budget.
Tom Mahon noted that an initiative requires action
from the Town Council. He noted
that if the Town Council does not act, then the process for a referendum can be
initiated to put an issue on the ballot.
A motion was made by David Yakuboff and seconded by
Fran L’Heureux to adopt the following language:
9.1 Citizen Concerns
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.
Individual Petitions, Action
Discretionary. The Council shall
receive all petitions which are addressed to them and signed by a registered
voter and may, in their discretion, take such action in regard to such
petitions as they deem necessary and appropriate.
Group Petitions, Action
Required. The Council shall hold a
public hearing and act by taking a vote on the merits of every petition which
concerns a matter in which the town is empowered to act; which is addressed to
it; and which is signed by at least 100 registered voters. The hearing shall be held by the
Council, or by a committee or subcommittee thereof, and the action by the
Council shall be taken not later than 60 days after the petition is filed with
the Town Clerk. Hearings on two or
more petitions filed under this section may be held at the same time and
place. The Town Clerk shall mail
notice of the hearing to 10 petitioners whose names first appear on each
petition at least 7 days before the hearing. Notice shall be given by publication of a summary of the
contents of a petition at least 7 days prior to all such hearings, at public
expense. No hearing shall be held
upon more than one petition containing the same subject matter in any 12-month
period. No hearing or action by
the Council under this section shall be required in the case of any petition to
suspend the implementation of an ordinance adopting a budget or enacting a land
use regulation.
Tim Tenhave noted that 100 registered voters are too
many. He proposed that this figure
be changed to 50. He also noted
that the petitions should go to the Town Manager, not the Town Clerk.
Heather Anderson noted that language regarding the
means of publication of the petition should be the same as were noted in prior
sections of this proposed charter.
There was concern expressed by Peter Batula that a
threshold of 100 voters would discourage people from getting involved.
An amendment was made by Tim Tenhave and seconded by
Heather Anderson to change the number of registered voters needed on a group
petition to 50 from 100, to change the Town Clerk to the Manager, and to remove
the words “hearing or” from the last sentence of the “Group Petitions” paragraph. The amendment passed 8-1-0.
The main motion passed as amended 9-0-0.
Section 9.2 Initiative
Petitions
The Commission debated whether a number of
petitioners should be designated or a percentage of the voters at the last town
election should be used. Tom Mahon
noted that this is not meant to be an easy process. Tim Tenhave noted he prefers a fixed number. Mr. Mahon noted that a percentage takes
into account the growth of the town.
He suggested a 3% figure, which would be about 500 registered voters.
A motion was made by Lon Woods and seconded by
Robert Kelley to adopt the following language:
Section 9.2 Initiative
Petition
A. The registered voters of
the Town shall have the power to proposed ordinances to the Council.
B. Commencement of
Proceedings. Initiative procedures
shall be started by the filing of an initiative petition with the Manager. The petition shall be addressed to the
Council, shall contain a request for passage of a particular measure set forth
in the petition, and shall be signed by 500 voters or 3% of the total number of
registered voters, whichever is less.
An amendment was made by Lon Woods and seconded by
David Yakuboff to require 500 signatures or 3% of the registered voters,
whichever is greater. The motion
failed 3-6-0.
An amendment was made by Tom Mahon and seconded by
Fran L’Heureux to require 500 signatures.
The amended motion passed 9-0-0.
The main motion passed 9-0-0.
A motion was made by Lon Woods and seconded by David
Yakuboff to adopt the following language:
B. Signatures to an
initiative petition need not be all in one paper. All such papers pertaining to any one measure shall be
fastened together and shall be filed in the office of the Manager as one
instrument, with the endorsement thereon of the names and addresses of the
persons designated as filing the same.
With each signature to the petition shall be stated the place of
residence of the signer, giving the street and number, if any. Within 7 days after the filing of an
initiative petition, the Town Clerk shall ascertain by what number of
registered voters the petition is signed, and shall attach thereto a certificate
showing the result of such examination.
The Manager shall forthwith
transmit the certificate with the petition to the Council and at the same time
shall send a copy of the certificate to the first person designated on the
petition as filing the same.
When such certificate
establishes that the petition appears to have been signed by the requisite
number of registered voters, the petition shall be deemed to contain requisite
signatures unless written objections are made with regard to the signatures
thereon by a registered voter within 7 days after such certificate has been
issued, by filing such objections with the Council and a copy thereof with the
Town Clerk. The validity of any
such objection shall be determined by the Council at their next regular
meeting.
The motion passed 9-0-0.
A motion was made by David Yakuboff and seconded by
Robert Kelley to adopt the following language:
C. Requirements for Passage
and Submission to Electorate. If
the Council determines that the petition contains the requisite signatures of
registered voters, and the petitioned initiative measure may lawfully be passed
by the Council, the Council shall within 20 days after the petition has been
finally determined to be sufficient; (1) pass the measure without alternative;
or, (2) schedule a special Town election to be held on a date not less than 30
nor more than 60 days thereafter, and submit the measure without alternation to
a vote at that election. However,
if any other Town election is to occur within 60 days after the petition has
finally been determined to be sufficient, the Council may omit a special
election and submit the measure to a vote at such other Town election.
The ballot presenting an
initiative measure shall state the nature of the measure in terms sufficient to
communicate the substance thereof.
The question shall be whether the initiative measure should be adopted.
Concern was expressed regarding the length of the
petition and how it should be presented on the ballot. Peter Batula questioned whether the
petition, if passed, becomes a recommendation or a mandate. Finlay Rothhaus noted that there is no
language that indicates that passage is binding, but the intent is that if the
Council passes it, it is binding and if the electorate passes it, it is
binding. Tim Tenhave noted that
the binding nature of this section needs to be ensured.
The motion passed 8-1-0.
Approve Minutes
September 7, 2005 – A motion was made by Lon
Woods and seconded by Fran L’Heureux to approve the minutes of September 7,
2005 with changes. The motion
passed 7-0-2.
October 4, 2005 – A motion was made by Robert
Kelley and seconded by Lon Woods to approve the minutes of October 4, 2005 with
changes. The motion passed 8-0-1.
Questions from the Press
There were no questions from the press at this time.
Public Comments
There were no comments from the public at this time.
Commission Member Comments/Remarks
Property – Tom
Mahon noted that real property includes buildings and land, while personal
property includes everything else, including intellectual property.
Website – Heather
Anderson noted that all sections which have been moved to the draft charter are
on the website. She noted that she
is currently looking at major changes to the front page of the website to
accommodate the space needed to include all the draft sections.
Adjourn – A
motion was made by Fran L’Heureux and seconded by Lon Woods to adjourn the
meeting at 9:50 PM. The motion
passed unanimously.
Respectfully submitted,
Rita Carlton, Recording
Secretary