Town attorney: Board holds final ruling on police votes

LYNDEBOROUGH — Two petition articles related to Police Department management that will appear on the town’s warrant should be considered advisory, according to Town Counsel William Drescher, meaning the Select Board would not have to follow through if the articles are approved.

One article asks voters to direct the Select Board to appoint a police chief who would operate under the authority of N.H. RSA 105. The other would appropriate $7,400 to pay for “a complete and thorough interviewing and vetting process for the hiring of the next commanding officer of the Lyndeborough Police Department.” That process, according to the warrant article, would include hiring an outside firm to handle recruitment and vetting, thorough background investigations and establishment of a citizen’s panel to do interviews.

According to a letter that Drescher sent to Town Administrator Kate Thorndike in January, both articles would not be binding on the Select Board if passed.

“Both articles seek to have the Town Meeting insinuate itself into matters that are peculiarly within the sound discretion of the Board of Selectmen and beyond the authority of Town Meeting to dictate,” Drescher wrote.

The article directing the board to appoint a police chief is problematic, according to Drescher, because RSA 105:1 enables a Select Board to appoint a chief when they deem it necessary. He wrote, “It is not within the authority of the Town Meeting to take away this discretion and to compel the board to act if the board does not ‘deem it necessary.’”

He said voters at Town Meeting could debate on the petition article and vote on it, but any vote would not be binding and would serve only as a “sense of the meeting” referendum.

Shortly after the petition article was submitted in August, Select Board members Arnie Byam and Kevin Boette said they would go along with the will of voters if the petition article is approved.

“I’ve always been aware that you cannot tell the selectmen what to do,” said Lee Mayhew, one of the sponsors of the petition, when asked about Drescher’s opinion on Thursday. But he added that he expects that if the article passes, Select Board members will follow through.

“Two of the Select Board members have said they would support it if the voters did,” Mayhew said.

The third board member, Donnie Sawin, was not at the August meeting where Boette and Byam addressed the petition. Sawin is up for re-election and is being challenged by former Select Board member and former Milford Police Chief Fred Douglas, who has frequently said the town should have a police chief rather than an officer-in-charge at the head of the Police Department.

On the second petition article, Drescher wrote, “The Town Meeting may not direct the board in the manner in which it conducts hiring processes, since this is also something that is clearly within their sound discretion.” For that reason, he said, a vote to approve would be nonbinding and advisory. However, since the article contains an appropriation, that amount would have to be raised by taxation. If the board chose to use the money, it would have to be used as directed in the article, according to Drescher. If the board chose not to spend it, the money would lapse into the town’s general fund at the end of the fiscal year.

Drescher also wrote that language in the state’s Municipal Budget Act could limit the town’s options if the article were to be defeated. The act contains a provision stating that if a Town Meeting does not approve an appropriation for a specific purpose, no amount of money could be transferred to or used for that purpose.

Drescher wrote, “One narrow view... of the language is that the defeat of an article raising money for the purpose of hiring a chief of police means that no amount of money could be spent on that purpose during the ensuing fiscal year. Thus, even the defeat of this article could, arguably, result in the board not being able to expend funds on the selection of a chief of police, even if they elected to engage in that process in spite of the defeat of the article.”

For that reason, he recommended that voters at Town Meeting should table the article without voting on it.

“I don’t agree with him on tabling the article,” Mayhew said. “The citizens wanted a process. The ability to do the process is contingent on having a dollar amount to do it with. I believe the town should get a chance to vote on that.

Mayhew said the vote, even if it’s advisory, should take place, because it will give guidance to the board.

“Lyndeborough has a history of doing what the Town Meeting votes to do,” Mayhew said.

On Monday, Thorndike said the Select Board was planning to follow the recommendation in Drescher’s letter to have his opinion shared with voters prior to their discussion of the two petition articles.

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