Another crisis at the Belknap county nursing home has arisen. It must be dealt with on Monday, Thursday is too late. In a story at the Laconia Daily Sun, Michael Mortensen asked the right question, “why the commissioners were resorting to a special meeting rather than waiting for the commission’s next regularly scheduled meeting on Thursday.”
Many answers to the question are long standing issues that are well known and have been considered for years. If you are familiar with the proper method of reading the Laconia Daily Sun, you’ll know you need to sort through a bit of fluff before you find the nugget of truth. And in this case, it is this; “the requirement that all health-care workers must, by Dec. 5, be vaccinated against COVID.”
Joe Biden has demanded workers be forced to accept an experimental medical treatment and highly educated medical providers are willing to be fired rather than take the risk.
The county administration counted on these workers knuckling under to the pressure to accept the jab. Now with a week to figure out what to do the commissioners will look for a Hail Mary pass. While Biden controls the printing press and can freely (at great expenses to the citizens) throw money at problems, the county commissioners are limited in their response. They might squeeze the county taxpayers for more money; something private nursing homes can’t do (yet are forced to compete against). Or they might consider giving exemptions to those who conscientiously stand for bodily integrity and autonomy; a right of every New Hampshire citizen.
While there have been many calls for Governor Sununu to bring the legislature into a special session to address these vaccine mandates, he has chosen to ignore the brewing crisis.
Having been around the block a time or two, I won’t be surprised to read the follow-up story in the Laconia Daily Sun which blames the county delegation for the crisis.
The Gunstock Area Commission (GAC) is a public body and is required to operate in compliance with RSA 91-A. If they were following the law there would be minutes and notices coming from the Master Planning Committee outlining the work of the committee. They can not produce any such record.
A further troubling issue is that they admit that there has been no vote on that which is included in their Master Plan. Above we can see that they did vote to ‘bake into’ the following year’s budget $100,000 toward producing the Master Plan. One might think that such a contract might have some sort of guidance toward the goals of the Master Plan. One is left to speculation.
This sort of government operation in the shadows is sadly not uncommon. Our Right-To-Know laws are much too weak, and place the burden of oversight on the public. A citizen would have to file a suit in superior court in order to resolve the issue.
In this instance there is a more direct solution available. The county delegation is responsible for the appointment of GAC members. We also have the ability to remove commissioners ‘for cause.’ Violation of RSA 91-A sure seems to be a reasonable cause for removal of the chairman in charge of the commission.
Let’s start with a point on which all agree; Gunstock is a valuable county asset. As such it is in the interest of all in the county to assure it continues to be properly run and maintained. As far as I know there is no one that is interested in closing or harming Gunstock.
Many people have been chiming in with their opinions on the proper operation of the Gunstock ski area. Having attended most Gunstock Area Commission (GAC) meetings for the past couple of years I have to ask, where have you been?
If all those who write letters to the local paper had been attending GAC meetings, we might not be in the position which requires involvement of the delegation. The letters you write are based solely on information delivered by sources that have their own agenda. You have been used to support a plan of which you know little. Even those who have been following the actions of the GAC have only partial knowledge of the soon to be revealed Master Plan. It might be a useful exercise to ask the GAC when they voted to approve the Master Plan and when the public was allowed to comment on said plan.
Gunstock is a county owned and operated asset. It is not a private business. The GAC is a public body appointed by the Belknap county delegation. As a public entity it is required to adhere to the public meeting laws under RSA 91-A. The development of the Master Plan has had little to no public input and seems to have been produced by a subcommittee of the GAC, yet such a subcommittee has not met publicly nor produced minutes of any meetings. If this is true it is a violation of the right-to-know law, RSA 91-A. If it is not true the GAC can produce records of meeting dates and minutes, along with recommendations from the subcommittee made to the GAC. I have seen no evidence supporting the existence of such records.
Many letter writers have questioned the timing of the delegations action against members of the GAC. It was not the delegation that demanded the removal of commissioner Ness. The GAC put this issue on the table when they produced a defamatory and baseless claim against Ness. The GAC voted to get a legal opinion regarding the validity of their ethics policy, yet the resulting report from attorney Quarles wandered into defamatory allegations which lacked support of any witnesses or testimony. The GAC voted to censure commissioner Ness without due process. This key failure, to assure that the claim which was delivered to the delegation had merit, is the reason it was dismissed.
While there is currently insufficient evidence available, the GAC votes lacking verifiable facts might be considered reckless and harmful actions against a public official and should be referred to the Attorney General. The report produced by attorney Quarles went beyond the issue of the ethics policy which was approved by the GAC. The report was clearly defamatory. Motivation for the production of the report may be tied to commissioner Ness’ diligence in seeking information necessary to his duties as a member of the GAC. As the scope of work was beyond that which had been authorized, a case for the misuse of funds may be made. Improper Influence – RSA 640:3, Criminal defamation, RSA 644:11, Obstructing Government Administration, RSA 642:1, Official Oppression – RSA 643:1, Conspiracy – RSA 629:3, are criminal elements that may be at issue, along with civil claims that could be brought in the future.
It has been said that the actions of the delegation are unprecedented, and it is true. Unfortunately it is also extremely rare for a board to seek the removal of one of its own members. Once again the delegation is not the initiator of the events. We as a delegation have a duty to ensure that the GAC is properly serving in the public interest. To do anything less is to shirk our responsibilities.
Among many false allegations is an assertion that Gunstock might be closed. This is pure nonsense. Those who spread such absurdities only wish to irresponsibly drum up fear. One is left to speculate as to the source. Perhaps the Laconia Daily Sun would like to advise the public as to the people behind Citizens For Gunstock’s full page ads, or those 2 pages of petition signatures. Sadly it is unlikely that those who signed the petition had much knowledge of that which they signed.
The GAC repeatedly claims credit for the great performance of Gunstock in the past year. While it was a very good year, it would be hard to find a business in outdoor recreation that did not do extremely well in the year of COVID19; housebound people were deprived of their normal activities which would have them in close contact with other people. Boston area skiers unable to get on airplanes swarmed to the north making it a great year for all eastern ski areas. It certainly didn’t hurt to have a reasonably good winter for snow cover. This is said not to diminish the efforts of the employees but to simply put the great fiscal performance in perspective.
Speaking of the financial success of Gunstock, the GAC never fails to remind the public that they have always paid off in a timely fashion their Revenue Anticipation Notes (RAN). It is indeed true. What they never mention is the $6,000,000 default in 2000 which was picked up by county taxpayers. I can assure you the payments made to the county over the past 20 years have not amounted to recovering that loss. I’ll not venture into what kind of bonding might be suggested in the new Master Plan as I have no such knowledge.
As was noticed on Nov. 6, 2021, “On Monday October 25, 2021 attorney Thomas Quarles presented to the Belknap county delegation a Request for Disqualifications (RFD). This request was addressed from four members of the Gunstock Area Commission (GAC), Kiedaisch, Gallagher, McLear, and Dumais. In this request it is made clear by the use of their titles that they are acting as members of GAC.” What is not clear is how attorney Quarles was hired without a meeting of the GAC. This is contrasted by the vote on Nov. 10, 2021 in a public meeting (for which public comment was not allowed) to have attorney Quarles file for a temporary restraining order against the delegation. It appears that attorney Quarles was hired in an unnoticed meeting, prior to producing the RFD, in violation of RSA 91-A. If true, this stands as ‘just cause’ for removal.
Another perplexing question arises from that Nov. 10, 2021 vote to retain counsel. The temporary restraining order explicitly seeks to protect commissioners Kiedaisch, Gallagher and McLear from removal. They had a clear conflict of interest yet they were the only commissioners voting to approve the motion to engage counsel. Expending funds from Gunstock for their own personal protection might be viewed as ‘just cause’ for removal.
Once again, I know of no one that wants to close or harm Gunstock. My only agenda is open and transparent operation of a county asset. I will continue to work for good government and a successful Gunstock Mountain Resort.
Rep. Mike Sylvia Chairman, Belknap County Delegation
PUBLIC MEETING NOTICE:
November public meeting of the Gunstock Area Commission will be held on
Wednesday, November 17th at 6PM in the Historic Lodge at Gunstock
Mountain Resort. To view the public notice and tentative agenda, please
Let’s start this exploration with a very short clip from the August 27, 2020 meeting of the Belknap county commissioners.
Meeting chairman DeVoy stated, “we need to ratify the vote to implement a stipend for mandatory overtime.” He then asked for a roll call vote. The total time spent on this subject in public meeting was 22 seconds.
Go ahead and have another look. Was there a motion to approve a policy? Was there any discussion? What is this vote that they claim to be ratifying?
The relevant section of the meeting agenda tells us:
and the minutes of that meeting;
The commissioners “voted” for this policy on August 17, but that vote seems to have taken over four hours. Anyone with the slightest comprehension of RSA 91-A will understand that the commissioners did not vote on August 17, they did not have a meeting. Lacking a meeting, there was no vote. If there was no vote, then there was nothing to ratify. At best this is a clear admission of a violation of our right-to-know law.
91-A:2 Meetings Open to Public. – I. For the purpose of this chapter, a “meeting” means the convening of a quorum of the membership of a public body… whether in person, by means of telephone or electronic communication, or in any other manner such that all participating members are able to communicate with each other contemporaneously… for the purpose of discussing or acting upon a matter or matters over which the public body has supervision, control, jurisdiction, or advisory power.
I advised the commissioners of their error, in the hope that they would give more consideration to the command of our constitution in Part I, Article 8.
Government, therefore, should be open, accessible, accountable and responsive.
Not only did they ignore it, they paid their attorney to try to explain the problem away.
Attorney Fitzgerald’s first attempt to make the problem go away, his response to the county administrator:
Notice that he states, “a particular action is of no legal effect and did not constitute a binding vote.” And he goes on, “if the tentative approval became a reality through a formal vote at a properly noticed meeting.” I agree, it will become a reality if they ever do have such a vote.
It is clear that attorney Fitzgerald has not seen that 22 seconds of video above. His “understanding is that the matter was raised at the actual meeting, an explanation of the proposed action was provided by Chairman DeVoy and then a vote was taken,” is not based in reality. A good attorney practicing due diligence would not allow such a deviation from the facts.
By stating, “Given the fact,” when operating from a false premise, the result will fall short of good legal advice. We can not know from this if he has failed to acquire the proper facts from which to make his conclusion or if he is trying to be elusive of his own accord. Either case opens attorney Fitzgerald to a question of integrity.
On November 5, 2020 the county administrator wrote to the commissioners outlining her version of the timeline of events. Notably she states, “At the commission meeting 8/27/20, the Board reviewed the policy and ratified its vote of approval in public.” As we saw earlier, attorney Fitzgerald properly had stated that there was no vote on 8/17. And “the Board reviewed the policy” is a stretch referring to the Board’s action (go take another look at the video if you don’t recall all 22 seconds).
The administrator’s letter has another concerning detail, the first shift worked under the new policy happened on August 23, 2020, five days prior to the scheduled vote.
On November 10, 2020 attorney Fitzgerald wrote to the administrator explaining away concerns. He makes the claim that the policy was to be instituted retroactively to 8/14/2020. Once again, do you recall from the video, the discussion of this being implemented retroactively as attorney Fitzgerald suggests.
Next in his letter attorney Fitzgerald re-affirms that there was no illegal communication outside of a meeting; a fine bit of distraction as that was not at issue. The issue is that there was no vote on 8/17/2020 that would need to be ratified on 8/27/2020. Oddly, he mentions ‘the meeting later that evening’ referring to 8/17/2020, there was NO meeting held on that date.
Being less than satisfied with the responses to this issue I sent another letter to the commissioners on November 16, 2020.
Where will this end?
91-A:7 Violation. – Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief.
91-A:8 Remedies. – III. The court may invalidate an action of a public body or public agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation.
What judge would say that all those stipends paid in the past year are invalid payments? Can I dream of the commissioners being personally hit with the bill?
Every two years in New Hampshire almost all elected officials either terminate their service or stand for re-election. Over the course of the past 7 years, documented in this series, many of the faces have changed. In December 2020 over one third of the Belknap County Convention were seated as first term representatives.
While the faces of the Convention have changed, the actions of the commissioners and administration have yet to be subjected to accountability regarding abuses of budget authority.
As you have read, the law is clear regarding appropriations. It is also clear in its path to remedy. One such remedy is provided in RSA 21:17 which allows:
24:17 Investigations. – The county convention by a vote of a majority of all its members may appoint a committee of its own members, not to exceed 5, and not over 3 to be of either of the 2 major political parties, to investigate conditions pertaining to the conduct of county affairs by any county officer or any person appointed or employed by such officer, which committee shall have power to summon witnesses, examine them under oath, secure a transcript of the testimony and do other necessary acts to conduct such an investigation.
We need not look back to previous years of abuse, 2020 provides a prime, and current example for which the committee of investigation may focus.
Having been granted the authority to transfer up to the sum of $5,000 between departments in the budget, it became clear in October 2020 that one department would exceed its $717,000 appropriation.
The year ended with department 025180 with a budget of $717,000 showing $919,385.88 having been spent, $202,385.88 more than had been appropriated for the department. (page 13)
As the chairman of the committee of investigations prepared to line up interviews with staff members, the administration was busy putting roadblocks in his path. They refused to pay for a court reporter to properly record testimony. Without properly recorded testimony under oath no investigation could proceed to gather reliable information.
In order to acquire the necessary testimony it became clear that a court order would be needed to assure payment to a court recorder, getting that court order would now require an attorney to represent the committee of investigation.
Chairman Silber held a meeting of the committee in order to seek approval to hire an attorney, who had agreed to allow payment upon the court’s order. Members of the committee failed to go forward in their duties.
The issue will be returned to the Convention on August 10, 2021 at 7:00 pm to resolve questions surrounding the investigation. Of note, the first meeting of the Convention in December 2020 was a mixed, in person and Zoom remote meeting. Many of our new members were unable to grasp the depth of the issues due to the poor quality of communications via remote technology.
Representatives of Belknap county have a duty to investigate conditions pertaining to the conduct of county affairs by any county officer or any person appointed or employed by such officer. Failing to fulfill this duty would be an act of nonfeasance.
If you are keeping count you know this is the fifth in the series of posts outlining the problems which continue in Belknap county.
The county administration for 2018 has taken a more low profile strategy in their attempts to take control of appropriating authority. On July 17, 2018 at the Executive Committee review of the budget a little problem popped up.
Separate fund? As in outside the budget? Here we go again.
A little bit a research showed that a scheme was created to allow the sheriff to move outside detail out of the budget.
Note that this dates back to April 3, 2018 shortly after the budget was made final. Also, there is no law that allows for this revolving fund. My criminal complaint was sent to the county attorney and the Attorney General. If you have been following along, you know there would be no criminal investigation.
Once again, on October 18, 2018 the commissioners reverse their action. No harm? No foul?
Back to today’s title, the case for misfeasance seems rather solid. A case for malfeasance is strongly supported. On Tuesday August 10, 2021 the county Convention will look at more recent actions of the commissioners. As chairman of the Convention, I can say that nonfeasance is not an option for the Convention.
The 2017 sprinkler scam fell apart pretty quickly so for 2018 the Belknap county commissioners tried a more stealthy plan to snatch a few bucks from the contingency fund.
During the Executive Committee’s review of the budget on May 11, 2018 we noticed $4,000 had been removed from the contingency fund.
As mentioned, the statute is clear; 24:13 Powers. – II. Notwithstanding any other laws to the contrary, the county convention of any county shall have the power to appropriate a contingency fund to meet the cost of unanticipated expenses that may arise during the year or to provide payment for a performance audit under RSA 28:3-b, to be expended only upon approval by the executive committee of the county delegation.
This was first time we had noticed the missing money, be assured no approval had been sought to transfer the funds.
Once again you can see that this crisis was a total contrivance, as reported in the Laconia Daily Sun, the budget for the department could hardly be stressed in April. And just to drive their scheme a touch further:
He (MacFadzen) asked for $3,000 to be transferred to cover both items.
Commission Vice Chairman Glenn Waring, who chaired Thursday’s meeting due to absence of Commission Chairman Dave DeVoy, and Commissioner Hunter Taylor, said they thought he needed more money than requested and voted to transfer $4,000 to the department.
If you are going to rob the bank why stop at $4,000?
DeVoy said commissioners agreed to undo the transfer rather than face the prospect of a long, drawn-out legal battle with the delegation over budgetary authority.
“It wasn’t worth it. And the money isn’t needed right now anyway,” he said.
Having returned the money to the bank, the county attorney declared ‘no foul.’
I found this to be less than satisfying considering the history of abuse and forwarded this issue to the Attorney General’s office with some additional details. Somewhere in the stacks of papers in my ‘office’ there is a reply that roughly say, ‘blah, blah, blah, so what?’
As the ink was still drying on the 2017 Belknap county budget a crisis arose which would require dipping into the county’s contingency fund.
If you want to get Pravda on Winnipesaukee to write some serious fear porn just find a way to put nursing home residents in “danger.” This was clearly contrived to demonstrate the dire ‘lack of funding’ in the budget. It was rejected, and not another peep has been heard in the following years. Sprinkler systems need routine maintenance.
A mere month later the Convention was assembled to hear a request from the county commissioners for a supplemental appropriation. The request for $229,500 failed on a 7-7 tie vote.
On August 8, 2017 the Convention again gathered to hear another request for a supplemental appropriation. The extra $256,852 was approved. At the year-end we would find this exercise was unnecessary and $900,000 would be returned to the county’s fund balance. The time, money and effort that went into getting the supplemental appropriation was not a benefit to the citizens of the county, rather it went to make managing the budget a very simple process – just spend what you have, there is plenty. It’s hard to understand how that can even be considered management.
If you go back through the records you will find that the commissioners hired two law firms to assist in their pursuit of additional funding. They spent $6,540.05 in their zeal to grasp control of appropriating authority. None of that money benefited the citizens of the county, it simply made the commissioners’ job easier. Do you recall this one: 643:1 Official Oppression. – A public servant, as defined in RSA 640:2, II, is guilty of a misdemeanor if, with a purpose to benefit himself or another.
Each time they get away with this sort of behavior, they become bolder in their disregard for the law. Bear in mind as the years roll by that we have differing members of the board of commissioners. One might want to put a bit of thought into why it is that the commissioners continue to act in the same way despite the change in elected officials.
2018 will be a banner year for corruption in the county, we’ll get into that next time…
Just a couple of weeks after the judge made his ruling, as we saw in the last post, the county Executive Committee met to review the county budget. Not that anyone would expect an instant turnabout, and the commissioners were busy spending more taxpayer money in legal fees to challenge the court order, the Executive Committee found spending beyond what had been appropriated.
And the legal bills would come to the Executive Committee in the form of a transfer request February 17, 2015. Note the comment of the newly appointed (Republican) commissioner Hunter Taylor.
The Convention in 2015 set a line-item transfer limit of $800, an increase from $300 in 2014, allowing the commissioners more flexibility in moving money between lines in the budget.
In 2016 that limit was increase to $1,000. By the summer of 2016 we would start to see signs of problems ahead.
There is a word that describes spending beyond that which is appropriated; misappropriation. Perhaps you recall the earlier statement by commissioner Taylor?
24:15 Exceeding Appropriations. – I. No county commissioner, or elected or appointed county officer, shall pay, or agree to pay, or incur any liability for the payment of, any sum of money for which the county convention has made no appropriation, or in excess of any appropriation so made except for the payment of judgments rendered against the county. II. In the case of an emergency, the county commissioners, or an elected or appointed county officer, may apply to the executive committee, which, after a public hearing, may grant to the county commissioners or officer authority in writing to make such emergency payment.
IV. If any county commissioner, or elected or appointed county officer, is found in a prosecution for violation of RSA 643:1 to have paid or incurred any liability for the payment of any sum of money contrary to this section, it shall be prima facie evidence that such county commissioner or officer has knowingly refrained from performing a duty imposed by law.
We can clearly see that funds had been spent beyond appropriations in August of 2016 but we can not say who is responsible for the misappropriation. That would have required an investigation and prosecution.
643:1 Official Oppression. – A public servant, as defined in RSA 640:2, II, is guilty of a misdemeanor if, with a purpose to benefit himself or another or to harm another, he knowingly commits an unauthorized act which purports to be an act of his office; or knowingly refrains from performing a duty imposed on him by law or clearly inherent in the nature of his office.
We can see in this November 22, 2016 Executive Committee meeting that the county administrator is aware of the issue, yet the commissioners deny knowledge.
At this point you might start asking yourself why I don’t grab a mirror and have a look at my responsibility for allowing this to continue. Good point. While there will be more in the next installment, I’ll give you a glimpse of the past when I previously brought up the need for an investigation. From January 12, 2015, you can get a sense of the cool reception.
We will come to see there is little appetite in government to hold ourselves accountable, but I will not stop so easily. More to come…
For far too long the Belknap County Board of Commissioners have been usurping budgetary authority from the county Convention. This was seemingly corrected in 2014 when the Convention won an injunction barring the commission from acting without authority given by the Convention’s Executive Committee.
Some highlights from the court’s ruling:
Upon review, the Court agrees with the petitioner’s argument. The legislature has created a comprehensive scheme of checks and balances for the creation and implementation of county budgets. Voters elect state representatives, who make up the county conventions of the counties from which they are elected. Voters also elect a board of commissioners for each respective county. The commissioners draft proposals for the county budget, which they present to the county convention. The County convention then votes on a finalized budget, taking the commissioners’ proposals into account. Once passed, the effective budget for the following year is returned to the county commissioners so that they may execute it.
Should the petitioner prevail on its merits, then this would necessarily mean that that respondent has been transferring and spending taxpayer money outside of the scope of its authority under law. If the Court were to deny this request for temporary relief, then this would allow the respondent to continue this practice until a final disposition in this suit was rendered.
The possibility of the continued unauthorized transfer and expenditure of taxpayer money, especially in the wake of the likelihood that the petitioner will succeed in this case on the merits as discussed below, creates the prospect of immediate and irreparable harm to the taxpayers of Belknap County. This factor therefore also militates in favor of the Court granting the petitioners request for temporary injunctive relief.
If the respondent continues to transfer and expend funds during the pendency of this case, there is the very real possibility that the vast majority of the 2014 budget will be expended by the time the Court issues a final disposition.
Applying the above standard, the Court finds that under the plain meaning of RSA 24:14, line-items in the 2014 budget constitute “appropriations.” RSA 24:14, II defines an “appropriation” as “an amount of money authorized for a specified purpose by the legislative body.” [emphasis added.] In this definition, the legislature made no distinction between money allocated to departments generally and to specific line-items within each department. Instead it defined “appropriations” broadly. The definition on its face suggests that line-items fall under this provision.
Additionally, RSA 24:14, I, states that “[a]ppropriations by the county convention shall be itemized in detail.” (emphasis added.) The legislature’s use of the word “shall” in RSA 24:14, I, not only suggest that conventions are permitted to itemize their budgets, but appears on its face to expressly require them to do so.
This reading of the definition of “appropriations” is also supported by the way in which RSA 24:14 functions in conjunction with RSA 24:15. RSA 24:14, I, grants conventions the power to “require that the county commissioners obtain written authority from the Executive Committee before transferring any appropriation or part thereof under RSA 24:15.” RSA 24:15, III reads:
Unless otherwise ordered by the county convention, under RSA 24:14, whenever it appears that the amount appropriated for a specific purpose will not be used in whole or in part for such purpose, the county commissioners may use such sum to augment other appropriations, if necessary, provided the total payments for all purposes do not exceed the total sum of appropriations in any year made by the county convention.
Thus, while commissioners are generally afforded limited authority to transfer funds between appropriations, county conventions are explicitly reserved the power to regulate these transfers by requiring the written consent of the Executive Committee. If line items were not “appropriations” under RSA 24:14, then this would severely hamper the ability of a county convention to utilize this power. The respondent’s reading of RSA 24:14, I, would give commissioners virtually unfettered ability to transfer funds under RSA 24:15, III without regard to convention restrictions under RSA 24:14, I, as long as transfers were made between line-items within the same budgetary department. County conventions would either have to substantially alter the way by which they formulate budgets in order to ensure that fewer items were outside of the scope of these provisions, or resign themselves to the fact that they have limited oversight over how commissioners expend appropriated funds. This would encompass an unwarranted erosion of the power expressly afforded to the county conventions on the face of RSA 24:14, I.
On March 3, 2015 the county commissioners submitted to the court a stipulation, agreeing to abide by the law and seek transfer authority as adopted in the yearly budget.
You might think this would be the end of budgetary shenanigans at Belknap County. Who could fault you for thinking the commission would abide by their word.