MERRIMACK CHARTER
COMMISSION
REGULAR MEETING
November 22, 2005
Commission
members present: Vice Chairman Heather Anderson, Secretary Fran L’Heureux,
Peter Batula, Robert Kelley, Finlay Rothhaus, Tim Tenhave (arrived at 6:20 PM),
David Yakuboff, and Lon Woods
Excused:
Chairman Tom Mahon
Vice
Chairman Anderson convened the meeting of the Charter Commission at 6:10 pm in
the Conference Room of the Town Hall.
Announcements
Fran L’Heureux noted the 10th Annual Candlelight Walk would be
held this Saturday at 6:00 PM.
There were no public comments at this time.
Vice Chair – Vice
Chairman Anderson noted that all articles moved to the draft charter to date
have been sent to the attorney.
The attorney has received these, but there has been no response to date.
A motion
was made by Lon Woods and seconded by Fran L’Heureux to change the reference in
Section 7.17 from Article 9.5 to Article 7.4.P. The motion passed 7-0-0.
A motion was made by Lon Woods and seconded by Robert Kelley to move the
following language to the draft charter:
Article VII
Finance
7.1 Fiscal Year
The fiscal and budget year of the
Town shall begin on the first (1) day of July and end on the thirtieth (30) day
of June unless other dates shall be fixed by action of the Town Council.
7.2 Preparation of Budget
At such time as may be requested
by the Manager or specified by the Administrative Code, each officer or
director of a department shall submit an itemized estimate of the expenditures
and any revenues for the next fiscal year for the departments or activities
under their control to the Manager.
The Manager shall, based on these estimates and other data, prepare a
recommended budget which shall, together with these department estimates, be submitted
to the Council on such date as the Council shall establish. In presenting the budget to the Town
Council, the Manager shall also include a detailed report of estimated revenues
other than those to be derived from real estate taxes, paying particular
attention to enterprise departments or activities, and an estimate of the
impact on the Town portion of the tax rate. The Council shall review the budget for the following fiscal
year and make such modifications and amendments as it desires.
7.3 Budget Hearings
The Council shall hold in
convenient places as many public hearings on the budget as it deems necessary,
but at least one public hearing on the budget shall be scheduled at least 20
days before the first session of the Budgetary Town Meeting at such time and
place, convenient to the public, as the Council shall direct. Notice of such public hearing and
Budgetary Town Meeting, together with a copy of the budget as submitted, shall
be posted in at least two public places.
A copy of the budget shall be available to the public at the office of
the Town Manager during regular business hours. In addition, notice of such public hearing and Budgetary
Town Meeting shall be published in a newspaper of general circulation in the
Town, as well as the posting of the notice in at least two other public venues
as the Town Council may designate, at least one week prior to said hearing.
7.4 Final Adoption of Budget
A. Notwithstanding RSA 39:3-d and
RSA 40:4-e, the Town of Merrimack shall utilize the official ballot for voting
on all budgetary issues before the voters.
B. The warrant for any annual
budgetary meeting shall prescribe the place, day, and hour for each of 2
separate sessions of the meetings, and notice shall be given in accordance with
RSA 39:5.
C. The first session of the annual
budgetary meetings, which shall be for the transaction of all business other
than voting by official ballot shall be held between the second Tuesday of
March and the Saturday following the second Tuesday in March, at a time prescribed
by the Town Council. A quorum of
400 registered voters must be present to conduct any business, including
amending any warrant article and the Operating Budget.
The second Tuesday in April shall
be deemed the annual meeting date for the purposes of all applicable statutes
pertaining to hearings, notice, petitioned articles, and warrants, including,
but not limited to: RSA 31:95-d, 32:5, 32:16, 33:8-a, 39:3 and 39:5.
D. The first session of the
meeting, government by the provisions of RSA 40:4, 40:4a, 40:4b, 40:4f, and
40:6-10, shall consist of explanation, discussion, and debate of each warrant
article. Warrant articles may be
amended, subject to the following limitations:
1)
Warrant articles whose wording is prescribed by law
shall not be amended.
2)
Warrant articles that are amended shall be placed on
the official ballot for a final vote on the main motion, as amended.
E. All budgetary warrant articles shall be placed on the official ballot
for a final vote.
F. The second session of the
annual meeting, to elect officers of the Town by official ballot, to vote on
questions required by law to be inserted on said official ballot, and to vote
on all budgetary warrant articles from the first session on official ballot,
shall be held on the second Tuesday in April.
G. The Town Clerk shall prepare an
official ballot, which may be separate from the official ballot used to elect
officers, for all warrant articles.
Wording shall be substantively the same as the main motion, as it was
made or amended at the first session, which only such minor textual changes as
may be required to cast the motion in the form of a question to voters.
H. “Operating Budget” as used in
this section means a statement of recommended appropriations and anticipated
revenues submitted to the budgetary town meeting as an attachment to, and as
part of the warrant for, an annual or special meeting, exclusive of “special
warrant articles”, as defined in RSA 32:3, V.
I. If no operating budget article
is adopted, the Town either shall be deemed to have approved a “Default
Budget”, defined as the same appropriations as contained in the operating
budget authorized for the previous year, reduced and increased, as the case may
be, by debt service, contracts, and other obligations previously incurred or
mandated by law, or the Town Council may hold a special meeting to take up the
issue of a revised operating budget only; provided that RSA 31:5 shall not
apply to such a special meeting.
If no operating budget article is adopted, the estimated revenues shall
nevertheless be deemed to have been approved.
J. The wording of the article on
the operating budget shall be as follows:
“Shall the Town raise and
appropriate as an operating budget, not including appropriations by special
warrant articles, the amounts set forth on the budget posted with the warrant,
for the purposes set forth therein, totaling $______? Should this article be defeated, the operating budget shall
be $_______, which is the same as last year, with certain adjustments required
by previous action of the Town meeting, or by law or the Town Council may hold
one special meeting, to take up the issue of a revised operating budget only.”
K. Voting at the second session
shall confirm to the procedures for the nonpartisan ballot system as set forth
in RSA 669:19-29, including all requirements pertaining to absentee voting,
polling places, and polling hours.
L. Approval of all
warrant articles shall be as provided in New Hampshire State Law.
M. Votes taken at the
second session shall be subject to recount under RSA 669:30-33 and RSA 40:4-c.
N. Votes taken at the
second session shall not be reconsidered except by warrant article at a
subsequent annual or special meeting.
O. The warrant for
any special meeting shall prescribe the date, place and hour for both a first
and second session. The second
session shall be warned by a date not fewer than 28 days nor more than 60 days
following the first session. The
first and second sessions shall confirm to the provision of this subdivision
pertaining to the first and second sessions of annual meetings. Special meetings shall be subject to
RSA 31:5 and 39:3 provided that no more than one special meeting may be held to
raise and appropriate money in any one calendar or fiscal year, whichever
applies, and further provided that any special meeting held pursuant to this
section shall not be subject to RSA 31:5 and shall not be counted toward the
number of special meetings which may be held in a given calendar or fiscal
year.
P. The Council may
make emergency expenditures in accordance with the provisions of the New
Hampshire Municipal Budget Law, (RSA 32) as the same may be amended from time
to time.
7-5 Borrowing Procedures
A. Subject to the
applicable provisions of New Hampshire State Law and the rules and regulations
provided by ordinance in the Administrative Code, the Council may authorize by
resolution the borrowing of money for any purpose within the scope of the
powers vested in the Town and the issuance of bonds of the Town or other
evidence of indebtedness therefore and may pledge the full faith, credit and
resources of the Town for payment of the obligation created thereby; provided
that no notes or bonds shall be issued by the Council in excess of $100,000 per
issue except by a vote of four (4) Councilors, and a vote at a regular or
special Town Meeting called by the Council. Notification and posting of such bond issues in excess of
$100.000 shall be in the same manner as if it were a bond issue of a town pursuant
to RSA 33, with voting by ballot at a regular or special meeting. There must be an existing
appropriation, so that the borrowing does not incur expenditures in excess of
the authorized voted appropriation.
B. Borrowing for a
term exceeding one (1) year shall be authorized by the Council only after a
duly advertised public hearing.
C. The Council may
borrow in anticipation of taxes.
7.6 Lapse of
Appropriations
All appropriations
shall lapse at the end of the fiscal year and any unexpended portion thereof
shall not be expended without further appropriation, except as provided in RSA
32:7 as the same may be amended from time to time.
7.7 Quarterly Budget
Reports
Quarterly, and more
often if required by he Council, the Manager or his designee shall submit to
the Council data showing the relation between the estimated and actual income
and expenses to date, together with outstanding indebtedness and estimated
future expenses, anticipated transfers, other major variances to the operating
budget, active and anticipated risks to the Town which may impact the operating
budget, and other reports related to present and future revenues and expenses
which the Council may require.
7.8 Transfer of
Appropriations
After the budget has
been adopted, no money shall be drawn from the treasury of the Town nor shall
any obligation for the expenditure of money be incurred except pursuant to a
budget appropriation. The head of
any department, with the approval of the Manager, may transfer any unspent
balance or any portion thereof from one fund or agency within the department to
another fund or agency within his department. The Manager, with the approval of the Council, may transfer
any unspent balance or any portion thereof from one department to another.
7.9 Capital
Improvements Plan
A. The Town Manager,
after consultation with the Planning Board, shall prepare and submit to the
Town Council a capital improvements plan at least one month prior to the final
date for submission of the budget.
The capital improvements program shall include:
(1)
A clear summary of its
contents.
(2)
A list of all capital
improvements including major replacements which are proposed to be undertaken
during the next 6 fiscal year, including, but not limited to, equipment,
infrastructure and facilities, or property, with appropriate supporting information
as to the necessity for such improvements.
(3)
Cost estimates, methods
of financing and recommended time schedule for each improvement.
(4)
The estimate annual cost
of operating and maintaining the facilities to be constructed or acquired.
B. The capital improvements
plan shall be based on a period of not less than 6 years and shall be guided by
the Master Plan for the Town.
C. The foregoing information may be revised and extended
each year with regard to capital improvements still pending or in process of construction
of acquisition.
D. A summary of the updated capital improvements plan with
estimated costs shall be included in the Town Report and the current year costs
of the capital improvements plan shall be included in the Town Budget.
E. A summary of the
updated capital improvements plan with estimated costs shall be included in the
Town report and the current year costs of the capital improvements plan shall
be included in the Town budget.
7.10 Purchasing
Procedures
A. Purchasing and
Contract Procedure
The Administrative
Code shall establish purchasing and contract procedure, including the
assignment of all responsibility for purchasing to the Manager or his designee
and the combination purchasing of similar articles by different departments. The Council shall establish dollar
limits for purchases and contracts which must be by competitive bid and shall
establish the bidding procedures.
B. Purchasing Through
State of New Hampshire or State of New Hampshire Bid Price
No competitive bids
shall be required when purchasing through the State of New Hampshire or at the
State of New Hampshire bid prices.
C. Waiving of Bid
Requirements
Requirements for bids
may be waived in specific instances by a vote of five (5) members of the
Council.
D. Establishing
Maximum Dollar Amounts for Purchases and Contracts Without Council Approval
The Council shall
establish dollar amounts for purchases and contracts, over which no purchases
shall be made or contracts entered into without the affirmative vote of a
majority of the Council.
E. Authority of
Manager to Make Purchases and Enter Contracts
If the Council has
voted to make a purchase or enter into a contract, the Manager shall carry out
the vote of the Council and enter into such transaction on behalf of the town.
7.11 Depository
The Council shall
approve to the Treasurer the depository or depositories for Town funds and
shall provided for the timely deposit of all Town monies. The Council may require such security
for Town deposits as it deems necessary, except that personal surety bonds
shall not be deemed proper security.
7.12 Bonding of
Officials; Indemnification
Bonding
Any Town officer
elected or appointed by authority of this Charter shall be bonded in an amount
as required by New Hampshire State Law or dictated by prudent fiscal practice
for the faithful performance of the duties of the office. The Manager and all officers receiving
or disbursing Town funds shall be so bonded. All official bonds shall be corporate surety bonds, and the
premiums thereon shall be paid by the Town. Such bonds shall be filed with the
Town Clerk.
Indemnification of
Officers, Board Members, and Employees
The Town shall
undertake to indemnify and save harmless all its officers, officials, boards,
commissions, employees, and volunteers from personal loss and expense. Expenses may include reasonable legal
fees and costs, if any, arising out of any claim, demand, suit, or judgment by
reason of negligent acts or omissions, if the indemnified person was acting in
the scope of office or employment and in good faith in accord with the
provisions of New Hampshire State Law.
7.13 Investments;
Trust Funds
The Trustees of Trust
Funds shall invest and account for the funds under their supervision in
accordance with New Hampshire State Law.
7.14 Fiscal Control
The Administrative
Code shall establish procedures governing fiscal control of all Town finances,
including, but not limited to, a pre-audit of all authorized claims against the
Town before payment.
7.15 Grants, Gifts
The Town Council may
apply for, accept and expend monies received from the State, Federal, or other
governmental units, or from private sources which become available during the
fiscal year in accordance with RSA 31:95-b and RSA 31:95-e as the same may be
amended from time to time.
7.16 Independent
Audit
Independent
compliance and financial audits shall be made of all accounts of the Town at
least annually and more frequently if deemed necessary by the Town
Council. Such audits shall be
conducted according to auditing procedures of the American Institute of
Certified Public Accountants, the National Committee on Government Accounting,
and other such procedures which may be necessary under the circumstances, by
certified public accountants experienced in municipal accounting. Summaries of the results of such
audits, including findings and recommendations and any management letters,
shall be made public. At least
once every 5 years the Town Council shall change auditors. An annual report of the Town’s business
for the preceding year shall be made available to the public not later than 90
days after the close of the fiscal year.
7.17 Appropriations
After Budget Adoption
No appropriation
shall be made for any purpose not included in the annual budget as adopted
unless approved by a vote of five (5) members of the Council after a public
hearing. The Council shall, by
resolution, designate the source of any money so appropriated. This provision shall not apply,
however, to emergency appropriations adopted pursuant to Article 7.4-P of this
Charter.
7.18 Town Treasurer
A. There shall be a
Town Treasurer (hereinafter called “Treasurer”) who shall have all the powers
and duties granted by this Charter and New Hampshire State Law, provided
however that in making investments of Town funds, the Treasurer shall follow
the written investment policy as adopted or modified by the Town Council. The Treasurer shall be elected on an
at-large basis to a term of three (3) years at the Town Election. Vacancies in the office of Treasurer
shall be filled pursuant to New Hampshire State Law.
B. A Deputy Treasurer
may be appointed in accordance with New Hampshire State Law.
(Tim
Tenhave arrived at this time.)
The
motion and second were withdrawn to allow Tim Tenhave to participate in any
discussion.
The
motion was remade as previously stated by Lon Woods and seconded by Robert
Kelley. The motion passed 8-0-0.
Tim Tenhave
noted that there might be other possible definitions.
A motion
was made by Lon Woods and seconded by Fran L’Heureux to move the following
language to the draft charter:
Article XII
Definitions
Unless another meeting is clearly apparent from the manner
in which the word is used, the following words as used in this Charter shall
have the following meanings:
(1)
Charter. The word “charter” shall mean this
Charter and any amendments to it made through any of the methods provided under
RSA 49-B.
(2)
Council.
The word “council” shall mean the Town Council as promulgated in Article 3 of
this charter.
(3)
Days. The word “days” shall refer to calendar
days.
(4)
Deadline/Due
Date. When a “deadline” or “due
date” falls on a Saturday, Sunday, legal holiday, or other day or date when no
business is transacted due to a closure occasioned by a federal, state or
Council declaration, the Deadline or Due Date shall be the next regular
business day of the Town.
(5)
Emergency. The word “emergency” shall mean a
sudden, unexpected, unforeseen happening, occurrence or condition which
necessitates immediate action.
(6)
Initiative
Measure. The words “initiative
measure” shall mean a measure proposed by initiative procedures under this
Charter, but excluding:
a.
Matters relative to the
organization or operation of the Town Council;
b.
An
emergency measure passed in conformity with this Charter;
c.
The
Town budget;
d.
Tax
anticipation notes;
e.
Any
appropriation for the payment of the Town debts or obligations;
f.
Any
appropriation of funds necessary to implement a duly adopted collective
bargaining agreement;
g.
Any
proceeding, or part thereof, relating to the election, employment, appointment,
suspension, transfer, demotion, removal or discharge of any Town officer or
employee;
h.
Any
proceeding repealing or rescinding a measure, or a part thereof, which is
protested by referendum procedures.
(7)
Majority
Vote. Unless otherwise expressly
provided and a voting quorum being present the words “majority vote” shall mean
a majority of those present.
(8)
Measure. The word “measure” refers to a specific
act, or proposal. The specific act
or proposal may be a resolution, an ordinance, a referendum vote to be taken,
or other proposed action, depending on the matter to be acted on.
(9)
Multiple
Member Body. The words “multiple
member body” shall mean any body consisting of two or more persons, whether
elected, appointed, or otherwise constituted.
(10)
Number
and Gender. The singular number may be extended and applied to several persons
or things; words imparting the plural number may include the singular; words
imparting the masculine gender shall include the feminine gender; and words
imparting the feminine gender shall include the masculine gender.
(11)
Referendum
Measure. The words “referendum
measure” shall mean:
a.
a
measure protested by referendum procedures under this Charter, including a
specific item in the Town budget, but excluding items a through g listed in the
definition 6 initiative measures, or;
b.
any
proceeding of the Town Council providing for the submission or referral of a
matter to the voters at an election.
(12)
State Law. The words “state law” shall mean New
Hampshire State Law as embodies in the Revised Statutes Annotated (RSA) and
rules adopted under law.
(13)
Town. The word “Town” shall mean the “Town of
Merrimack”.
(14)
Agency. The words “Town Agency” shall mean any
board, commission, committee, department, or office of the Town government.
(15)
Voters. The word “voters” shall mean registered
voters of the Town of Merrimack.
The motion
passed 8-0-0.
A motion
was made by Tim Tenhave and seconded by Fran L’Heureux to change the first
sentence in Article I, Section 1.2 to read “”The administration of all fiscal,
prudential, municipal and other affairs of the Town with the governance thereof
shall be vested in a Town Council except as otherwise provided for in this
Charter.” The motion passed 8-0-0.
There was some
concern expressed regarding the wording in Section 2.7.
A motion
was made by Peter Batula and seconded by David Yakuboff to add the words
‘within 30 days of the receipt of an official notices by certified mail” to
section 2.7. The motion passed 7-1-0.
A motion
was made by David Yakuboff and seconded by Robert Kelley to leave the wording
in Section 3.1(a) as drafted. The
motion passed 8-0-0.
Tim Tenhave
noted there is a need to have a very clear definition of the word “certified”.
A motion
was made by Tim Tenhave and seconded by Peter Batula to leave the wording in
Section 3.4(b) as drafted. The
motion passed 7-1-0.
A motion
was made by Robert Kelley and seconded by Fran L’Heureux to add the words
“after the expiration of the term of office for which the Councilor was
elected” to section 3.4(d).
There was
some concern expressed regarding the fact that this might mean that an elected
official could not hold a position with the town until the end of the term for
which the official was elected even if the official resigned within a short
time period.
The motion
passed 5-3-0.
A motion
was made by Heather Anderson and seconded by Lon Woods to add the following
words to section 3.8 “The Town Council shall set policies for town government
and shall bear full responsibility for the implementation of said policies
through the hiring and supervision of the Town Manager.” The motion passed 8-0-0.
A motion
was made by Tim Tenhave and seconded by Fran L’Heureux to change the last
sentence in section 6.1 to read “The manager shall serve at the pleasure of the
Council with no fixed term of office.
The Council shall fix the manager’s salary and benefits and other terms
of employment.” The motion passed
8-0-0.
There was
some confusion regarding section 6.4 and the differences between the processes
of reprimand and removal. It was
suggested that Tom Mahon be asked to draft some language and the Commission
review this at a subsequent meeting.
A motion
was made by Tim Tenhave and seconded by Fran L’Heureux to add the following
words to section 6.7.c “in accordance with the “Personnel Plan”” after the
words “The Manager” and to move section 6.7.g to 6.7.d and renumber subsequent
sections. The motion passed 8-0-0.
A motion
was made by Lon Woods and duly seconded to change the first sentence in the
former section 6.7.g (now section 6.7.d) to read “The Manager shall proposed
for adoption by the Town Council a system of personnel administration known as
the “Personnel Plan”’. The
motion passed 8-0-0.
A motion
was made by Tim Tenhave and duly seconded to change the first sentence in the
third paragraph in section 6.10 to read “The head of each department shall have
supervision of such department and with the approval of the Town Manager may
prescribe rules and regulation for the conduct of such department, not
inconsistent with general law, this Charter, the Administrative Code, and the
provisions of the Personnel Plan.”
The motion passed 8-0-0.
A motion
was made by David Yakuboff and seconded by Tim Tenhave to accept section 6.8 as
adopted. The motion passed 7-0-1.
A motion
was made by Lon Woods and seconded by Robert Kelley to keep Article 8 as
adopted. The motion passed 8-0-0.
A motion
was made by Tim Tenhave and seconded by Fran L’Heureux to remove the word
“except” in section 3.8.b. The
motion passed 8-0-0.
There was
concern expressed by the Commission that there would be sufficient notice for
public hearings, etc. The
Commission noted it would be sufficient to leave the language as it currently
is. The Commission could revisit
this issue at a later date, if necessary.
The issue has
already been addressed.
This issue
has already been addressed.
A motion
was made by Tim Tenhave and seconded by Robert Kelley to change the word
“ordinance” to “measure”. The
motion passed 8-0-0.
A motion
was made by Tim Tenhave and seconded by Robert Kelley to change the timing of
elections in section 9.2.c and 9.3.d from 60 days between them to 90 days. The motion passed 8-0-0.
Heather
Anderson noted that this article is still in the hands of the attorney.
A motion
was made by Tim Tenhave and seconded by Lon Woods to make sure that section
11.5 includes the maintenance of the Administrative Code under this Charter
until it is updated as described.
The motion passed 8-0-0.
Tim Tenhave
noted he would bring draft language for this change to the next meeting.
These
issues have already been addressed.
A motion
was made by Tim Tenhave and seconded by Fran L’Heureux to move Article XII –
Definitions to Article II and renumber subsequent articles. The motion passed 8-0-0.
Tim Tenhave
noted that consistency is needed in the numbering of the articles and
sections. He noted that the word
“qualified” is used when the word “certified” should be used. He noted that in Article VIII the title
of the article is “Conduct of Officials”, but that throughout the article the
words “Code of Ethics” is used.
A motion
was made by Tim Tenhave and seconded by Lon Woods to change the title of
Article XIII to “Conduct of Officials/Code of Ethics”. The motion passed 8-0-0.
Mr. Tenhave
noted that the Ethics Committee was omitted in section 11.2.b as an elected
committee that will remain in place during the transition.
A motion
was made by Tim Tenhave and seconded by Robert Kelley to add “and Ethics
Committee” to section 11.2.b. The
motion passed 8-0-0.
Mr. Tenhave
suggested that the definitions for the following words be added to the list of
definitions in the new article II: ex-officio, certified, RSA.
A motion
was made by Fran L’Heureux and seconded by Lon Woods to accept the minutes of
November 1, 2005 as submitted. The
motion passed 6-0-2.
There was
no other business at this time.
Commission Member Comments/Remarks
Finlay
Rothhaus questioned the vote of 5-3 that moved language to the draft
charter. It was noted that a
majority of the Commission needs to vote in the affirmative to move an
amendment to the draft charter, but that a supermajority is needed to move an
amendment to the final draft. Lon
Woods suggested that we address Mr. Rothhaus’s concern this evening as it was
the collectively decision of the group to allow the wording to go forward. Mr. Rothhaus stated that he did not
want to pursue the matter.
Tim
Tenhave noted that he is looking at the possibility of a longer or tiered
signature time frame for the collection of signatures for an initiative or
referendum petition. He will bring
language regarding this possibility to the Commission.
Adjournment
A
motion was made by Robert Kelley and seconded by Lon Woods to adjourn the
meeting at 9:40 PM. The motion
passed 8-0-0.
Respectfully
submitted,
Rita
Carlton, Recording Secretary