September 11, 2010

Charter question off the ballot, state takes rap for fumbling process

Union Leader Correspondent
DERRY – Voters will not be weighing in on the town's proposed charter revision on Election Day, as planned. After an eleventh hour directive from the Attorney General's office late Thursday, advising that the town pull the question from the ballot, the council met for two “emergency meetings” yesterday to decide what to do.
Their choices: Comply by removing the charter question and then deal with a complicated process to fix the language in question; or defy the AG's office, keep the ballot as is and, if passed Tuesday, present voters with a town charter out of sync with state law and in need of fixing.
After discussion between the Council and Deputy Attorney General Bud Fitch, who attended the second of the two meetings on behalf of the state, the council voted 6 to 1 to pull the charter question from the ballot.
“Bud Fitch acknowledged that the error was 100 percent that of the AG's office. The guy totally fell on his sword and said the AG's office would go to superior court to get the process going to revive the charter commission, so the commission can finish what they started,” said Councilor Neil Wetherbee last night.
Council Kevin Coyle cast the dissenting vote – he objected to the emergency meetings and did not support removing the charter question from the ballot from the beginning.
Last night Coyle said he was disappointed in the Attorney General's office.
“Actually, disgusted is a better word. I'm disgusted with the AG's office and way they've handled this. They've created a problem for us and there was no reason for that to happen,” Coyle said. “Now it's likely we'll have lost the time, energy and commission members – and $20,000 – because of their failure.”
On Thursday the town received a faxed letter from the state Attorney General's office, outlining minor problems with some of the charter language in about a dozen amendments. The issues raised by the AG's office were subtle and had no bearing on the rights of the voters or the town's form of governance. Some of the issues involved processes that conflict with state statutes; other amendments simply required a more complete explanation.
All of it could have been corrected in about 15 minutes – if the AG's office had done it's part and reviewed the charter, which was submitted in January after an elected Charter Commission spent months poring over the document, said Coyle.
No one has determined what went wrong, but the town has copies of three signed receipts for delivery of the document, back in January. The matter came to light after Town Administrator Gary Stenhouse called the AG's office to question something in the charter that he felt might present a conflict with state law. That's when the AG's office requested another copy of the charter, saying they'd never received a first copy.
During the first of yesterday's two emergency meetings, the council reviewed the facts of the matter and unanimously moved to draft a letter to Gov. John Lynch requesting an investigation into the mishandling of the original document by the Attorney General's office. That still stands, said Wetherbee.
“We're in complete agreement on that issue as a council,” said Wetherbee. “We followed the process to the letter of the law. We have the receipts to show that the charter was delivered and signed for – to three different people in the AG's office. Finding out what went wrong won't fix our problem, but it's important that someone in Concord answers the question about how this even happened.”
During the 8 a.m. meeting, Coyle called the Attorney General's handling of the town's charter revision “reprehensible,” and blocked a vote during the morning meaning by calling for a charter objection. After 90 minutes of debate, the Council adjourned that meeting. Council Chair Brad Benson then called for a second emergency meeting at 4 p.m.
Coyle said legally the town had every right to move forward with the charter.
“The AG failed to act in a timely manner, and failure to act under the statute means it's approved. If they said to us, after we submitted the preliminary report back in January, that – hey, we have some issues, well those minor changes could have been fixed easily. But by statute, our Charter Commission is dissolved, and the Council has no statutory authority to remove something from the ballot that the Secretary of State has approved.”
Fitch's response was that the Council does have authority to pull the ballot – and should.
He admitted there are obvious flaws in the charter system that for years have plagued the state, which has been trying different approaches to make the review process more efficient. This is the first time, to his knowledge, that a charter submitted for review on time fell through the cracks and ended with such commotion.
“I'm not making excuses about any failures here. The system is not as good as it could be – clearly, not yet,” Fitch said.
Fitch said his office will wait for the town to take the lead in requesting assistance to get the process going, post election, which would likely involve going to superior court, explaining where things “went awry” and ask that the court “reset the clock” for the now dissolved Charter Commission to reconvene and finish the work it started, Fitch said.
I don't know what superior court would be willing or able to do, but we would have the goal of wrapping up the process in a timely manner and having the charter question on the ballot for March elections,” Fitch said.

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