2 planning board members survive removal attempt

MOULTONBOROUGH — Following a public hearing before an overflow crowd of nearly 100 people at Town Hall Yesterday, the Board of Selectmen voted unanimously not to remove Josh Bartlett from the Planning Board and without dissent agreed to abandon similar proceedings against his colleague Judy Ryerson.

"I'm incredibly gratified by the public support I've received," said Bartlett, "including from people I've had some pretty serious disagreements with."

Ryerson, who had prepared a lengthy statement in her defense, said "I'm very pleased with the result, but I wanted to have my say."

The hearings, at which the Town Administrator Carter Terenzini and the selectmen were frequently the target of catcalls and heckling, marked a lull, if not the end, of a controversy that has roiled the town for the past six weeks. Ever since Terenzini and Town Counsel Peter Minkow offered Bartlett and Ryerson an opportunity to resign or face proceedings to remove them for "inefficiency, neglect of duty or malfeasance in office."

The charges stem primarily from the conduct of the two on July 10, when the Planning Board approved construction of an observation tower by Bob and Cathy Williams, doing business as Bear's Nest Trail, LLC, on Red Hill, which was built without the requisite permits. To approve the project, the board was required to find that it satisfied 11 criteria. The minutes record that the seven members of the board were "polled" on the 11 criteria. Two of the 11 failed when the board split evenly — three-to-three — with Bartlett abstaining and Ryerson voting no. However, neither believed it was the best interest of the town to require the structure be dismantled. Ryerson changed her "no" to "yes," breaking the stalemate in the "poll," and Bartlett offered a motion to grant the CUP, which carried five-to-two.

For weeks the selectmen refused to reveal the source of the complaints against the pair, once claiming there was a "petition," sometimes claiming it was one person and other times several, but always declining to identify anyone by name.

On the eve of the hearings it was disclosed, as result of a Right-to-Know request filed by Bartlett's attorney, that the original complaint was made by Terenzini. On July 16, he sent a memorandum to the Selectboard, which was copied to Peter Minkow, headed by statement that "this is a privileged and confidential communication protected by attorney client privilege. It is not subject to release under FOIA (Freedom of Information Act) or RSA 91A (Right-to-know Law).

Two days later, in consultation with Terenzini and Minkow behind closed doors, the selectmen decided to initiate removal proceedings.

In his memorandum, Terenzini recounted the process at the Planning Board, stressing that after the members were polled on the 11 criteria "the appropriate motion was to deny . . . as there had not been an affirmative finding on all 11 items." But, he said that Bartlett, who had abstained, moved to approve the application then Ryerson changed her vote "without explanation" and the motion carried.

"I have no quarrel with those who did their very best to apply the ordinance," Terenzini told the Selectboard. "However, for the two who did not do this, their action sent a message that it is easier to ask for forgiveness ... than permission. This makes our enforcement difficult at best and at worse a farce."

When the hearing against Bartlett opened yesterday Terenzini, who presented the case against Bartlett, said he was prompted by complaints from several residents. "Name the names," someone shouted. Terenzini refused, drawing a round of catcalls when he said they were "verbal."

Selectman Chris Shipp, who has persistently called for full disclosure, moved to discontinue the hearing.

"The process has become more of an issue than the original problem," he said. He was second by Ed Charest, who said "I did the same thing" during his seven years on the Planning Board. Jon Tolman said that because the conduct in question took place in a recorded public meeting, the identity of those who complained is irrelevant.

When the motion failed three-to-two, the hearing continued.

Terenzini said that Bartlett, despite saying that the project failed to meet two of the 11 criteria, failed to vote "no" then moved to approve the application. At the same time, he refused to apply the so-called "de novo" standard by failing to treat the project as if it had not been built as well as the "juror standard" by allowing his personal opinions to affect his conduct.

Bartlett distributed material,. including a copy of his formal statement to the selectmen. When Terenzini asked for a copy "in the spirit of fair play" the crowd erupted in laughter.

Reading from his statement, Bartlett began by charging the Selectboard breached the N.H. Rght-to-Know law on July 18, when after receiving Terenzini's memorandum, they met with Minkow, discussed the issue and decided to proceed. He said that the Attorney General's memorandum on the statute stipulates that no deliberations are be held or decisions made while consulting with counsel in a "non-meeting," a statement Minkow later called "ridiculous."

Bartlett continued to rebut each of the charges. He insisted that he had a right to abstain and the minutes show that he fully participated in the discussion at the Planning Board. As for the "de novo" standard, he said "I find it very hard to deny reality" and questioned the origin and legitimacy of the standard.

Noting that Terenzini charged him with making "disparaging remarks" about the Zoning Board of Adjustment, Bartlett characterized his statements as "constructive criticism" and asked "is it not the duty of a board member to pint out , emphatically if necessary, if they see what they believe to be failures of town departments or boards to do their jobs properly?"

Meanwhile, attorney Chris Meier of Cooper, Cargill and Chant of North Conway, representing Bartlett, challenged the legitimacy of the hearings on two grounds. First, he reminded the selectmen that they decided to proceed at an "non-meeting" in violation of the right-to-know law. Furthermore, he claimed that Minkow, who advised the Selectboard to proceed and was advising them at the hearing, also represents the Planning Board, which amounts to a conflict of interest.

Meier told the Selectboard that he found only one case of a member of a land use board being removed and that was overturned by the New Hampshire Supreme Court. The standard for removal, he said, is "willful disregard of one's duties" which is extremely high, and none of the charges against Bartlett approached it.

When the hearing was opened to the public, eight speakers rose to Bartlett's defense. Kevin Kelly viewed the conduct of the selectmen the way his children reacted to him using a computer, remaking "they laugh." Eric Taussig, an attorney, found the removal proceedings "totally inappropriate" and "very distressing." Richard Brown, who chairs the Capital Improvement Program (CIP) Committee, acknowledged his differences of opinion with Bartlertt, but said that he was a conscientious member of the Planning Board who should not be removed. Several people warned that removing Bartlett in these circumstances would have a chilling effect on the recruitment of volunteers to serve on boards and committees.

When the Selectboard deliberated, Charest said that the charges simply did not warrant removal. "There are valid points on both sides of the issue," said Shipp, who agreed with Charest, but added he hoped everyone learned from this controversy.

Tolman said that the issue was not about Bartlett's character, but his conduct. But, he said that "I would have a hard time removing him. The place to remove elected officials is at the voting booth."

Shipp moved not to remove Bartlett and when the motion carried unanimously someone in the crowd asked "what about an apology?"
"Anyone?" asked Joel Mudgett, chairman of the Selectboard, "It's not necessary," said selectman Russ Wakefield to the chagrin of the crowd.

"I'm sorry we put you through it," said Shipp while Tolman admitted to discomfort with the process. "Should the process have been better? Yes. No question."