Defiant convention will retain its own counsel but who will pay the bill?

Published Date Written by Michael Kitch

LACONIA — Ignoring previous advice of legal counsel and defying the county commissioners, the Belknap County Convention last night decided to ask an attorney from the Mitchell Municipal Group of Laconia to defend the convention against the suit brought by Tom Tardif charging it violated the Right-to-Know Law by electing its current officers by secret ballot.
There was a sense of urgency about the issue since if an attorney fails to file an appearance on behalf of the convention today, it would lose its case by default.
Initially the convention requested permission from the commissioners, in whom state law vests the authority to engage and direct legal counsel representing in the county, to hire its own attorney.
When the commissioners refused, the convention appealed the denial to itself.
Describing the convention as "the appellate body, Rep. Richard Burchell (R-Gilmanton) cited a law bearing on the defense and indemnification of county officials sued while acting within the scope of their official duties. It provides that the county attorney or, with the consent of the commission, outside counsel shall provide their defense. The law further provides that officials denied representation by the commissioners may appeal to the convention.
When the convention convened yesterday, after Rep. Bob Greemore (R-Meredith) moved to proceed with hiring an attorney, Rep. .Beth Arsenault (D-Laconia) asked how the convention could appeal to itself.
From the chair, Rep. Colette Worsman (R-Meredith) told Arsenault to confine her remarks to the motion on floor, reminding her that the convention had already voted to accept the appeal.
"This is going a little more haywire than I expected," remarked Rep. Dennis Fields (R-Sanbornton), who has persistently challenged Worsman's conduct of the proceedings.
Rep. David Huot (D-Laconia), a retired district court judge, said that never in his 25 years of practicing law and serving on the bench did he see a party appeal to itself.
Burchell countered that he had access to legal opinions that upheld the position taken by the convention on the strength of his advice. Rep. Ian Raymond (D-Sanbornton) suggested the convention should follow the counsel of a judge instead of "someone without a law degree."
Commisisoner John Thomas of Belmont explained that the statute Burchell cited applied to individuals, not the entire convention, and that commissioners had not denied the convention legal counsel, but instead, following the statute, had retained attorney Paul Fitzgerald of Wescott, Millham & Dyer of Laconia, to defend it.
Worsman said Fitzgerald could not represent the convention because "we've never hired him."
Last week, offering written advice paid for by the commissioners, Fitzgerald told the convention that under N.H. law it was the commissioner's legal responsibility to hire counsel to defend the convention.
Last night, the motion to hire an attorney carried by a vote of 10 to 7. Ten Republicans — Representatives Greemore, Worsman and Herb Vadney of Meredith, Burchell, Jane Cormier and Stephen Holmes of Alton, Frank Tilton of Laconia, Michael Sylvia and Chuck Fink of Belmont, and Guy Comtois of Barnstead — voted in favor while two — Dennis Fields of Sanbornton and Bob Luther of Laconia — joined the five Democrats — Arsenault, Huot, Raymond, Ruth Gulick of New Hampton and Lisa DiMartino of Gilford — in dissent.  
Sylvia proposed that the Melissa Gulbrandsen, the county attorney, represent the convention, sparing taxpayers the cost of outside counsel. ""That puts me in an awkward position between the two bodies," said Gulbrandsen, aware that the county attorney works at the direction of the commission.
Worsman said, "I am very upset that we cannot choose the most cost effective of representation. Not being able to use Melissa flies in the face of taxpayers."
Burchell suggested Worsman file an appearance to represent the convention pro se, or "for himself," to meet the deadline and retain counsel later. However, Huot pointed out that because the convention is not an individual but a body, it cannot be represented pro se.
Ultimately, with Gulick the convention voted 15 to 1 to authorize Worsman to approach the Mitchell Municipal Group.
Commissioner Ed Philpot pointed out that the convention has no authority to enter a contract or to pay an invoice.