Published Date Written by Michael KitchLACONIA — The Belknap County Convention has scheduled a meeting on Tuesday, March 19 when, for the third time, it will vote to elect a chairperson, vice-chairperson, clerk and executive committee in an effort to parry a lawsuit brought by Tom Tardif and Dave Gammon alleging that the original election, which was conducted by secret paper ballot back in early December, violated the Right-to-Know law.
Rep. Colette Worsman (R-Meredith), who chaired the convention throughout the budget process, said yesterday that the meeting was convened on "the advice of counsel." However, she declined to identify the attorney who proffered the advice. "I'm not sure I can answer that," she said when asked.
Worsman's refusal apparently reflects her sensitivity to the dispute between the convention and the Belknap County Commission over the authority to retain legal counsel to represent the convention in the litigation. Two attorneys, Paul Fitzgerald of Westcott, Millham and Dyer, retained by the commissioners, and Laura Spector-Morgan of the Mitchell Municipal Group, hired by the convention over the objections of the commissioners, have filed with the court to represent the convention.
The suit was filed on February 8 and afterwards, according to an e-mail to members of the convention, including Worsman, from Rep. David Huot (D-Laconia) Worsman approached County Attorney Melissa Gulbrandsen.
In the December secret ballot vote, Worsman defeated fellow Republican Rep. Frank Tilton (Laconia) by a vote of 9-7 but it was not made public how individual representative's voted. Tilton has since been a staunch supporter of Worsman's leadership.
Tardif and Gammon argue that there is no basis in New Hampshire law for conducting any secret ballot vote during a meeting of a public board and that, in fact, RSA 91-A, specially prohibits such a practice.
Convention members claimed they were following the advice of the clerk of the N.H. House, who cited a decades old Supreme Court advisory opinion that allowed the House to elect its own speaker by secret ballot.
On February 19, the convention voted 11 to 2 with 4 abstentions and one member absent to "reaffirm" the election of officers on December 10, 2012. According to Huot's e-mail, sent following a long telephone conversation with Worsman, Gulbrandsen had a hand in directing the reaffirmation of the vote.
"Not disclosed at the recent meetings at which motions were made to reaffirm the votes at the organizational meeting, was the fact that the motions were, in fact, drafted by the county attorney," Huot wrote, "who thereby undertook representation of the convention, even though you did not have authority to engage her. Private advice given by the county attorney," he continued, "for example in her e-mail, restricted to you, advising you on how to proceed, gives me pause, ethically, in view of the statutes."
The commissioners insist that the law stipulates that the county attorney operates under the direction of the attorney general and, in litigation to which the county is party, the county commission. "If no other representation is provided," reads RSA 7:34, "under the direction of the county commissioners he or she shall prosecute or defend any suit in which the county is interested."
Meanwhile, on February 15, Worsman asked the commission, which is authorized to retain legal counsel, to permit the convention to hire outside counsel. The commissioners refused the request but said they had retained Fitzgerald to defend the convention.
Worsman said that a majority of the convention believed Fitzgerald had "a tremendous conflict of interest" in representing them. She said that Huot's son Matt, worked at Fitzgerald's law firm and the commission had "asked Fitzgerald for information about the direction the convention was taking. I'm not confident," she continued, "that the convention's best interests are aligned with those of the commission and his allegiance is with the commission, not the convention."
Enter Rep. Richard Burchell (R-Gilmanton) who applied a law bearing on the indemnification of county officials sued while acting within the scope of their official duties. It provides that "if no other representation is provided," which can only be arranged with the approval of the commission, 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.
The convention proceeded to appeal the commission's decision to itself and when it met on March 4 and resolved 11 to 6, with one member absent, to hire independent legal counsel and authorized Worsman to approach the Mitchell Municipal Group.
Worsman indicated that the county attorney was the first choice of the majority. "We chose the high road by pursuing the least expensive option," she said. "We were trying to act in the best interests of the taxpayers by not incurring unnecessary expenses."
Gulbrandsen, who was present when the convention voted to hire an attorney, told the members that she found herself "in an awkward position between the two bodies," because she thought the statutes defining her duties are in conflict. She concluded it would not not be appropriate for her to represent the convention.
Although the convention has retained Spector-Morgan, without the means or authority to spend money it appears unable to foot the bill. Earlier this week Commissioner Ed Philpot said that the commission, which must authorize all county expenditures, would not pay the invoice because "we did not hire the attorney."
Worsman said that "the convention is a separate branch of county government and is entitled to a legal defense at the expense of the county." She recalled the commissioners refusal to pay the legal fees incurred by the Register of Deeds when, following her refusal to implement measures recommended by the independent auditors and directed by the commissioners, the commission took her to court.
"Something is wrong with the process when they can pick and choose who to pay," said Worsman, likening the two situations.