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Is It Possible To Ratify A Non-action

Belknap county delegation

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.

Being less than satisfied with the attempt to brush off my concerns, I formally addressed the commissioners in a letter written on November 2, 2020.

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.

The county commissioners have a rather poor track record when it comes to abiding by injunctions.

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?

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The Duty to Investigate County Affairs

Belknap county delegation

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.

Executive Committee minutes Oct. 19, 2020
Executive Committee minutes Nov. 16, 2020

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)

Belknap County Convention formed a committee of investigation Dec. 14, 2020

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.

All the pieces in this series:

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Malfeasance, Misfeasance or Nonfeasance

Belknap county delegation

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.

All the pieces in this series:

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If You Can’t Dazzle Them With Brilliance

Belknap county delegation

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?

This cute little maneuver (if you can consider such crimes as cute) inspired an inquiry to the county attorney on May 16.

On May 31, 2018 the commissioners kinda, sorta, returned the money to the contingency fund.

It is not at all clear what the ‘transfer’ was, or where the money came from. It is clear that Taylor was doing this begrudgingly and likely because the commissioners heard from the county attorney.

Our beloved local newspaper covered the story.

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?’

Yes, there is more to come…

All the pieces in this series:

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Supplemental Appropriation; Another Bite At the Apple

Belknap county delegation

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…

All the pieces in this series:

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It Is Overspent

Belknap county delegation

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.

September 15, 2014 Executive Committee budget review.

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.

February 17, 2015 Executive Committee meeting.

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.

2015 transfer authority

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…

All the pieces in this series:

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Stop the Fear

Project Veritas has recently exposed CNN for using fear to attract viewers. It is a shameful technique used widely in media and politics. Your local ‘news’ paper uses it more than you may realize.

In a recent story about the Belknap County nursing home’s difficulty in finding nursing staff, it was made to sound as if this was an isolated problem for the county home. The reality is there is a wide spread problem in nursing in general. The problem is made worse by the easy availability of generous unemployment benefits.

As I know what is going on and I attended the commissioners’ meeting that spawned the article, I was not concerned. We have an excellent administrator at the Belknap County nursing home and the residents receive 5 star care.

A few days after the article appeared I received a call from a friend. She has a loved one residing at the nursing home. The story in the paper, as she read it, made it sound like the nursing home was going to be closed. I assured her that the nursing home is not closing and she could relax.

This was not a case of sloppy writing, it was carefully crafted to sow fear. This is shown in a more recent piece written about the county delegation investigation into spending irregularities.

Having attended the meeting from which this latest article arose, I found it odd that two references were made to oxygen in the nursing home. It was implied that there was insufficient funds available to have oxygen supplied to nursing home residents. It has nothing to do with the investigation and not a word about oxygen was spoken in the meeting. It seems only to be inserted to stoke fear of patients lacking proper care.

I immediately recognized this to be a manufactured ‘crisis,’ before I went to check the budget.

As of June 6, 2021, which covers the first 42% of the year, the budget for oxygen has spent 29%. From a budget of $39,000 only $11,266 has been spent. In fact, the estimate for the year end is that $9,000 will remain in the oxygen budget. Note that this is based on the very frugal delegation budget, the county commissioners had budgeted $49,800 for the year. What’s $20,000 between friends? Some might call it fraud.

More than enough in the budget for oxygen. And 1/2 million excess in nursing services!
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2021 Belknap County Budget

The county board of commissioners’ budget for 2021 proposes to raise property taxes by 12%. As is always the case the commissioners have provided enough padding in the budget to allow them to spend as they desire without needing to manage a budget. They are also using $2 million from fund balance (previously paid taxes).

Let’s note here that many of the county’s senior citizens will be getting a 1.3% increase in their social security.

As we know the commissioners like to compare one budget to the next in order to downplay the actual increase they are seeking. The 2020 budget was $30,829,837 which was ~$2.25 million higher than was needed to fund county operations in 2020. In other words the taxpayers were forced to pay $2.25 million more than was necessary for county operations in 2020.

Now let’s compare the 2020 spending of ~$28,600,000 to the 2021 commissioners’ request of $31,961,320. We can see here that spending would increase by 11.8%, compare that to growth (loss) in the non-government sector. Because the commissioners use the budget-to-budget scheme they can claim the increase in spending is only 4% over 2020.

While this escalation of spending is bad enough on the surface it is actually worse. The commissioners have finally removed a taxpayer gift to Community Health Services Network, LLC. from their budget. That line in 2020 was $580,000. In the end a little less than $300,000 was given to this corporation.

As we look at bringing common sense to the county budget, we should be staying within $28.3 million (28.6 million minus $300,000) with a 2% maximum for inflation. Using such a sensible method will put spending for 2021 at ~$28,900,000. Taking this reasonable projection of the funds needed to run the county shows that the commissioners have asked for $2.9 million more than is necessary.

The executive committee has gone through the budget and removed some of the fat. They have pared down the spending to $30,256,185 which is an increase in spending over 2020 of 5.6%, well above inflation. As I have said in the past, governments can only grow faster than the general economy for a short period of time before large problems force a solution upon them.

The citizens of the county have faced many challenges in 2020 from an economy disrupted by the reactions to the virus. The county has amassed a fund balance beyond the commissioners’ upper limits. A $6,000,000 fund balance is 20% of the county’s annual budget. How many of our citizens have savings of 20% of their annual salary? Few, I will guess. The executive committee has budgeted a return of $3,000,000 to the taxpayers, giving them a bit of relief while maintaining ample funds to handle any emergencies.

This is how the administration views the budget, comparing to the previous budget.

The county administration loves to obfuscate reality by comparing budget-to-budget. We know that the 2020 budget had over 2 million dollars appropriated that were not necessary. So, in order to get a proper evaluation take the 2020 budget of $30,829,837 and subtract the excess $2,250,000 to start with a realistic budget of $28,579,837. Now you will see that the commissioners’ request is an 11.8% increase. The executive committee is allowing for an actual spending increase of 5.8% which is well above inflation.

A quick review

  • Exec Comm budget increases funding to $30,256,185 (5.69% increase)
  • Exec Comm uses $3,000,000 from fund balance to offset taxes (leaving $3,000,00 in fund balance)
  • The amount to be raised by taxes is $13,145,309 a reduction of $1,625,198 (11%)
  • They also voted to restrict transfers between departments to $1,000 without Exec Comm approval

There is one more step in the budget process, bringing it to the full county delegation. The administration will fight to have more money put back into the budget. If you want to avoid higher taxes join me to have your voice heard.

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2020 Final Belknap County Budget

Belknap county delegation

On Monday February 24, the Belknap County delegation met to complete its work on the 2020 budget. The grand total of expense lines total $30,829,837, an increase over the 2019 budget of $827,065. While the budget over budget increase appears to be in line with inflation at 2.75%, the increase as compared to the actual 2019 spending is approximately 5.7%. This means that in order to avoid out running inflation the administration will have to control spending to $30,053,004. This is far from a tall order as there is plenty of excess built in to provide for operational savings.

On the revenue side the budget expects to bring in $15,168,250 and uses $891,080 from undesignated fund balance, leaving $14,770,507 to be raised from taxes. This is the same tax level as last year.

In 2018 taxes were needlessly raised by over 14% which has led to a very flush fund balance held in reserve, which sits at approximately $4.2 million. You should understand that is money that was taken from taxpayers unnecessarily. It represents 13% of operational expenses sitting in the county’s bank account not the citizens’.

The delegation also, on Monday, approved cost items for three collective bargaining agreements. The unit covering the sheriff’s department gives 3% step increases each year over the 3 year term. The Corrections department and the Nursing Home both will receive 5% steps each year for the 4 years of the contract. Each of these contracts will, over time, bring the employee’s contribution toward health insurance up to 10%.

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Gunstock Changes

In an article I found at Patch, about some changes that have been in the works for a while, I found a few items that could use some clarification.

By Paula Tracy, InDepthNH.org

GILFORD, NH — Belknap County-owned Gunstock ski area is in for some changes as its longtime general manager and its marketing director leave. And legislation is proposed to give legislative leaders more control over the makeup of its governing board and the ski area’s money.

The writer kicks off this article with a pretty clear bias against legislators. The FACT is the legislators and the commission worked together to address deficiencies in the law that unduly restricted Gunstock from more efficient operation.

News of the change at the helm in the middle of the ski season came a day before legislation was heard on a bill to give the county legislative delegation more control over who operates Gunstock and where the money goes.

As to management of the ski area, it is functionally the end of the year and time to begin planning for future operations. As to ‘the money‘, this is more than a small quibble for control of a couple of bucks. The ski area has been rescued by the county taxpayers twice in recent decades. The last was a $6,000,000 bailout in 2000. If you can be bothered to do the math, there is hardly a return on investment, if you chose to look at in such terms.

The current law states that no more than one person from the same municipality can serve on the board but the bill looks to drop that requirement and it would add term limits.

The current law states that no more than one two persons from the same municipality can serve on the board.

The Gunstock Area Commission has a regularly scheduled meeting set for Jan. 29 at 6 p.m. at the ski area.

From the Gunstock web page;

The next meeting of the Gunstock Area Commission will be held Wednesday January 29th at 6pm at the Belkanp County Complex, Meeting Room 2, 34 County Way, Laconia NH 03247.